Document Fragment View

Matching Fragments

12. Mr. Aggarwal, learned senior counsel has made the following arguments:

A. He states that the twin conditions of section 45 PMLA are not applicable to the Applicant as she is a woman and falls within the proviso to section 45(1) PMLA which appears to further the constitutional mandate of Article 15(3) of the Constitution. He states that Article 15(3) enables framing of laws for the benefit of women and children. He submits that respondent‟s sub-classification of women under the proviso to section 45(1) is arbitrary and against the constitutional spirit. B. He places reliance on the judgment of this Court viz., Devki Nandan Garg v. Directorate of Enforcement 2022 SCC Online Del 3086(2022:DHC:4121) to contend that the proviso to section 45(1) has been incorporated as a relaxation for persons below sixteen years of age; a woman; or one who is sick or infirm. Reliance is also placed on the judgment of this Court in Kewal Krishan Kumar v. Enforcement 2023:DHC:4177 Directorate BAIL APPLN. 3575/2022 dated 17.03.2023 (2023:DHC:1925) reiterating the above argument. C. Mr. Aggarwal thereafter states that in the present case, the allegation against the applicant is that the applicant was a beneficiary (directly or indirectly) in the affairs of Unitech Limited and has acquired proceeds of crime to the tune of Rs. 151.12 crores. He states that section 3 of PMLA requires mens rea in order to commit the offence under the said statute as it uses the word „knowingly‟ twice. He places reliance on the judgment of Vijay Madanlal Chaudhary v. Union of India 2022 SCC Online SC 929.

EE. He states that a perusal of statements of all independent witnesses including Govind Sharda, Anuj Malik, and Pranav Kumar, would demonstrate that the Trikar Group was being managed by Mr. Sanjay Chandra and Mr. Ajay Chandra and not the Applicant. FF. At the time of hearing of the subject bail application on 07.03.2023, the learned Counsel for the ED handed over a document from Mr. Anuj Malik. In rejoinder, the learned senior counsel states that such document is not part of the underlying complaints, or even a part of the Reply filed by the ED in the present case. The Applicant cannot be expected to meet a shifting goal-post as a Section 45 PMLA threshold, at the time of bail, when such documents are neither part of the Complaint(s) nor part of the 2023:DHC:4177 Reply filed by the ED. In any event, even such statement does not attribute to the Applicant the control of the alleged entities in question. Triple Test GG. Learned senior counsel for the Applicant states that the Applicant is not a flight risk. She has flown overseas from India and back more than 30 times since obtaining the Dominican Republic passport in April 2016. When the Applicant was intercepted on 10.03.2021 at the Delhi Airport, she was travelling with a return ticket and had undertaken travel in January and February of 2021 with no attempt to flee. Reliance is placed on the judgment of Anil Mahajan vs Commissioner Of Customs & Anr2000 SCC OnLine Del 119wherein it was observed:

16. The first question that arises for my consideration is whether the Proviso to Section 45(1) of the PMLA will be applicable to the applicant being a woman.

Applicability of Section 45 PMLA

17. The genesis of Proviso to Section 45(1) of the PMLA which grants relaxation, to a woman or person under the age of sixteen years or sick or infirm person, is traceable from Article 15(3) of the Constitution of India.

30. In Devki Nandan (supra) 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. The relevant paragraphs of Devki Nandan (supra) read as under:

―33. A bare perusal of the Statement of Objects and Reasons of the PMLA goes to show that inclusion of the above conditions for grant of bail as a proviso to Section 45(1) of the PMLA elucidates the legislature's intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or infirm.‖ ...