Mrs Shivani Rajiv Saxena vs Directorate Of Enforcement & Anr
2017 Latest Caselaw 5093 Del

$~45

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      BAIL APPLN. 1518/2017

                        Order reserved on 11th September, 2017
                        Order pronounced on 15th September, 2017


MRS SHIVANI RAJIV SAXENA                       ..... Petitioner

                        Through:   Mr. Mukul Rohtagi, Mr. Dayan
                                   Krishnan, Mr. Haresh Jagtiani
                                   and Mr. Mohit Mathur, Sr.
                                   Advocates with Mr. Joshna
                                   Samuel, Mr. Manoj Pant and
                                   Mr. Rajat Agnihotri, Advs.

                        Versus



DIRECTORATE OF ENFORCEMENT & ANR               ..... Respondents

                        Through:   Mr. Sanjay Jain, ASG with Mr.
                                   Ripu Daman Bhardwaj, CGSC,
                                   Mr. Kartik Rai, Mr. Vidur
                                   Mohan & Mr. Sahaj Garg,
                                   Advs. along with Mr. Naresh
                                   Malik, IO (ED) & Mr. Karun
                                   (AEO) for respondent no. 1

                                   Ms. Meenakshi Chauhan, APP
                                   for respondent no. 2.




BAIL APPLN. 1518/2017                                  Page 1 of 16
 CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. By this application under Section 439 of the Code of Criminal

Procedure, 1973 (the Code, for short) read with Section 45 of the

Prevention of Money Laundering Act, 2002 (PMLA, for short),

petitioner has prayed for grant of bail to her in Enforcement Case

ECIR/15/DLZO-1/2014.

2. Brief facts of the case are that Central Bureau of Investigation

(CBI), registered a case vide RC 217 2013 A0003 dated 12 th March,

2013 under Sections 7, 8, 9, 12, 13(2) read with Section 13(1)(d) of

the PMLA read with Section 120-B and 420 IPC, in respect of a

contract signed by Ministry of defence with M/s Augusta Westland

International Limited, for supply of 12 numbers of AW 101 VVIP

helicopters. It was alleged that the contract was awarded to the said

company after changing the specifications of the helicopters, in order

to favour the said company after taking huge commission/bribe.

Subsequently, on the basis of said case, present ECIR case was

registered for the offence under Section 3 punishable under Section 4

of the Act. During the 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. The money laundering was done through several

consultancy contracts executed between the said company and other

companies, namely, M/s Gordian Services Sarl, M/s Tunisia and M/s

IDS Sarl, Tunisia etc. These companies further executed consultancy

contracts with M/s Interstellar Technologies Ltd., Mauritius, M/s IDS

Infotech Ltd., Chandigarh, M/s Aeromatrix Info Salutations Pvt. Ltd.,

India and others. M/s IDS, Tunisia received Euro 24.37 million from

M/s Agusta Westland. M/s Interstellar Technologies Ltd., Mauritius

had received 12.4 million Euros. These proceeds were then transferred

to foreign locations including the companies owned by the petitioner

and her husband, namely, M/s UHY Saxena, Dubai and M/s Matrix

Holdings Limited, Dubai. Petitioner was partner/director in both the

companies. Petitioner was arrested in Chennai on 16 th 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. Petitioner did

not disclose other banks accounts, which found reflected in her HDFC

Bank account. Petitioner was also associated with M/s Matrix Group

Limited, Dubai, M/s Matrix Holdings Limited, Dubai, M/s Cronimet

Mercon Invest. Ltd., Dubai, M/s ReCom Properties Pvt. Ltd. and M/s

Whitespring Estate Pvt. Ltd. as a director or otherwise.

3. 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, details whereof, as could be traced till now, are as

under :-

4. Learned senior counsel has contended that petitioner is a

woman aged about 53 years. She is a house wife and is also sick.

Petitioner is unwell, which is evident from the remand application

dated 21st July, 2017 filed by the respondent before the learned Special

Judge. Orders dated 17th July, 2017, 21st July, 2017 and 26th July,

2017 passed by the learned Special Judge also show that petitioner is

sick and needs medical attention. During the investigation, respondent

was directed to provide necessary medical assistance to the petitioner

vide aforesaid orders. Even now, petitioner is sick and is not being

provided proper medical treatment in jail, which fact is evident from

the order dated 4th September, 2017 passed by the learned Special

Judge, wherein it is noted that there was no physiotherapist available

in jail. 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.

5. Petitioner is in custody since 16th July, 2017. 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 in M/s UHY Saxena, a partnership concern. 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 by the learned

Special Judge. Ritu Khaitan, R.K. Nanda and J.B. Subramaniam were

not even arrested by the respondent. In the predicate offence, that is,

FIR No. RC 217 2013 A 0003 main accused namely Air Chief

Marshell (Rtd.) Shashinder Pal Tyagi, Gautam Khaitan and Sanjeev

Tyagi have also been released on bail.

6. Per contra, learned ASG has contended that 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. 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. Proviso can be pressed into

service only in such cases where the accused, by virtue of a woman

and sick, would justify her being treated in the same genre of the

person enlisted in the proviso. Sickness of the petitioner is not serious

in nature. She only needs physiotherapy, as is evident from the orders

dated 23rd August, 2017 and 4th September, 2017 of the learned

Special Judge. Physiotherapy is already being provided while she is in

jail. 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 vide judgment dated 16th June, 2016 passed in

Bail App No. 1050/2016.

7. It is further submitted that the proviso is only an enabling

provision which vests power in Court to exercise discretion in

appropriate cases to the categories of persons as notified therein

including woman or sick, but the same cannot be construed to mean

that it would annihilate the main section which provides the twin

rigours as its basic feature and commences with a non obstante clause

"Notwithstanding anything contained in the Code of Criminal

Procedure, 1973". It is submitted that Legislature, by placing the Non

Obstante Clause in the PMLA, intends that bail in PMLA cases cannot

be treated as a bail under the Code. Similar proviso finds mentioned

in Section 437(1) of the Code and in the context of said proviso,

Supreme Court in Prahalad Singh Bhati v. GNCT, Delhi (2001) 4 SCC

280 has observed that the persons as notified in the proviso should not

necessarily be released on bail. Reliance has also been placed on

Meenu Dewan vs. State MANU/DE/0021/2009 wherein also similar

view has been taken. It is further submitted that there is enormous

evidence on record to show that petitioner is guilty and likely to repeat

the offence. Petitioner is not similarly placed as Gautam Khaitan and

others, who have their roots in India. 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. Petitioner‟s husband is still in

Dubai and has not participated in the investigation despite notices

being issued to him. By placing reliance on several documents

collected during the investigation, learned ASG has contended that

petitioner is not a house wife and, in fact, was actively associated with

the affairs of the companies, as detailed in para 3 herein-above. She

has done Masters in Finance.

8. Relevant it would be to refer and rely upon Section 45 of the

PMLA at this stage, which reads as under :-

"45. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless - ]

(i) The Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) Where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by -

(i) The Director; or

(ii) Any officer of the Central Government or State Government authorized in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.

[(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.]

(2) The limitation on granting of bail specified in subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

9. A perusal of Section 45(1) of PMLA makes it clear that no

person, accused of an offence punishable for a term of imprisonment

of more than three years under Part A of the Schedule, shall be

released on bail or on his own bond unless twin conditions as

stipulated in Section 45(1) are satisfied. Firstly, Public Prosecutor has

to be given an opportunity; secondly in case Public Prosecutor

opposes the application the Court has to be satisfied that there are

reasonable grounds for believing that accused is not guilty of such

offence and that he is not likely to commit any offence while on bail.

First proviso is exception to the above rule and vests power of

discretion to the Court to release on bail the categories of persons, as

notified in the proviso, which includes a woman or a sick person. 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, in as much 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.

10. Similar proviso finds mentioned in Section 437 (1) of the Code,

which reads as under :-

"(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause

(ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court."

(Emphasis laid)

11. In the context of proviso to Section 437(1) of the Code, a

learned Single Judge of this Court in Meenu Dewan (Supra) 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 (Supra)

also, 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)

12. 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. In the

order dated 23rd August, 2017, learned Special Judge has recorded, on

the basis of medical reports regarding health condition of the

petitioner, that physiotherapy was being provided to her. It has been

further noted that upon enquires made from the petitioner she

submitted that she was getting proper medications and physiotherapy.

Order dated 4th September, 2017 also indicates that jail authorities

have been directed to make necessary arrangements for physiotherapy

of the petitioner. 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.

In Chhagan Chandrakant Bhujbal (Supra), a prayer was made for

releasing the petitioner on interim bail for three weeks by filing an

application under Section 439 of the Code read with Section 45 of the

PMLA but the same was declined, even though, he was diagnosed as a

known case of Hypertension with Controlled Diabetes Mellitus with

Bronchial Asthma with Obstructive Sleep Apnea with Root Canal

treatment for 46, 47 with Periapical Osteltis 46 and other chronic

ailments as mentioned in the clinical diagnostic report produced in

Court.

13. 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, keeping in mind the nature and gravity of offence, bail

application is dismissed.

A.K. PATHAK, J.

SEPTEMBER 15, 2017 ga