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2023 (6) TMI 650 - DELHI HIGH COURT
Money Laundering - proceeds of crime - predicate offences - diversion of funds from home-buyers from the accounts of Unitech Limited or its associate company - existence of mens rea - triple test - Flight Risk - Influencing Witnesses and Tampering with Evidence - whether the Proviso to Section 45(1) of the PMLA will be applicable to the applicant being a woman? - HELD THAT:- PMLA does not define a ‘woman’. It is neither the intention of the Constitution of India nor the intention of PMLA to classify women on the basis of their education and occupation, social standing, exposure to society, etc. - It is also settled principle of interpretation that while interpreting a statute and/or a Section, the Courts are not to substitute or add or subtract words from the Section. The same would be amounting to supplanting the intention of the Legislature.
Once the word ‘woman’ has been used in the Proviso to Section 45(1) of PMLA, the Court is not to further sub-classify women into different categories and apply the twin condition of Section 45 to some category of women and to exclude some category of women from the twin condition of Section 45. Doing the same would be not only be violative of Article 14 of the Constitution but also be a great injustice to the intention of the Legislature - In Devki Nandan [2022 (9) TMI 1216 - DELHI HIGH COURT] this Court has already held that the proviso to section 45(1) PMLA is an exception and once a person comes within the exception, the twin condition of Section 45 PMLA will not be applicable to such person.
This court has observed in Kewal Krishan Kumar [2023 (3) TMI 746 - DELHI HIGH COURT] that the legislature has carved out the proviso to section 45(1) as a lenient provision for persons below sixteen years of age, women or persons who are sick or infirm.
Once an accused is a woman, the Proviso to Section 45(1) kicks in and the applicant would fall within the proviso - However, this does not mean that the applicant will not be required to satisfy the triple test for grant of bail.
In order to prove mens rea, the respondent/prosecuting agency is required to show something more than merely an allegation. In the present case, though the prosecuting agency has tried to substantiate the allegations by showing transfer of POC as well as section 50 PMLA statements, but what persuades me is that the Applicant has provided a prima facie reasonable, satisfactory explanation for each of the allegations. Whether the prima facie satisfactory explanation crystallises into substantial defence leading to an acquittal or is merely an eye-wash or a sham can only be determined after evidence - The explanations furnished by the Applicant seem reasonable to me to believe that prima facie the Applicant is not guilty of the offence of money laundering.
A coordinate bench of this court in Chandra Prakash Khandelwal [2023 (2) TMI 993 - DELHI HIGH COURT] has held that weightage given to section 50 statement is to be analysed at the final stage and not at the stage of grant of bail. Hence, prima facie not much reliance can be placed on section 50 statements in view of inconsistency in the statements of Indrajit Zaveri, Anuj Malik and Pranav Kumar.
Triple Test – Flight Risk
Once the Hon’ble Supreme Court has granted liberty to the applicant to move appropriate bail application before the appropriate Court, the appropriate Court has to adjudicate the application on its own merits and the reliance of the respondent on an earlier order prior to the order of 10.08.2022 passed by the Hon’ble Supreme Court may not be of much relevance. In addition, the respondents have interrogated the Applicant on numerous occasions and lastly on 15.09.2022. Thereafter the respondents have not felt the need to interrogate the Applicant for a period of more than 7-8 months - Regarding the applicant being a citizen of another country i.e., Dominican Republic, which does not have an extradition treaty with India, the learned senior counsel for the Applicant states that the Applicant is willing to renounce the citizenship of Dominican Republic as a bail condition and is already in the process of taking Indian citizenship.
Triple Test – Influencing Witnesses and Tampering with Evidence
A perusal of the chats show that the messages are with regard to settling of a counter affidavit, exchanging greetings, details of bank accounts asked for by the court, filling of bail bonds and so on and so forth - It cannot be lost sight that the applicant is the wife of Mr. Sanjay Chandra who is in Police custody. The applicant is allowed meetings and regular jail visits. All these messages could very well have been put by her to Mr. Sanjay Chandra during these jail visits. There is nothing incriminating in the messages except the fact that Mr. Sanjay Chandra should not and could not have a telephone while in jail, for which, an FIR has already been registered.
There are no messages which have been brought to my notice which show handling of money, monetary transactions, business decisions, siphoning off funds etc. Furthermore, as regarding tampering with evidence is concerned, it is already stated that all the documents are in the custody of the ED and therefore, the allegation of the Applicant tampering with the evidence or influencing the witnesses is not made out.
The twin conditions of Section 45 of the PMLA will not be applicable to the applicant. The applicant has to satisfy the triple test which can be taken care of by imposing stringent conditions. The applicant has already been investigated for more than 13 occasions and has been in custody for more than 20 months.
The application is allowed and the applicant is granted bail subject to the terms and conditions imposed.