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Mrs. Shivani Rajiv Saxena Versus Directorate of Enforcement & Anr.

2017 (9) TMI 952 - DELHI HIGH COURT

Prevention of Money Laundering Act, 2002 - grant of bail - Held that:- 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 fr .....

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uthorities 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 vicini .....

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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. - BAIL APPLN. 1518/2017 - Dated:- 15-9-2017 - MR. A.K. PATHAK J. Petitioner Through: Mr. Mukul Rohtagi, Mr. Dayan Krishnan, Mr. Haresh Jagtiani and Mr. Mohit Mathur, Sr. Advocates with Mr. Joshna Samuel, Mr. .....

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MLA, 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 12th 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 he .....

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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 .....

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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 i .....

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ails 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. Dur .....

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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 .....

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ence 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 .....

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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 Notwiths .....

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ance 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 husban .....

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ences 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 .....

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e 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 .....

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ated 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, .....

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)(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 .....

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onment 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 .....

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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 .....

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or 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, inasmuc .....

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