Leena Paulose Vs Directorate of Enforcement (Delhi High Court)
In, the Delhi High Court considered a bail application filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), read with Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA), in connection with ECIR/54/DLZO-II/2021 registered by the Directorate of Enforcement (ED).
The ECIR originated from investigations into another ECIR concerning Religare Finvest Limited. During that investigation, a witness disclosed that she had received calls purportedly from officials connected with the Prime Minister’s Office and Home Minister’s Office. Technical analysis allegedly revealed that the calls were made through an application capable of masking the caller’s identity. The caller was identified as Sukesh Chandrasekhar, who was already in judicial custody in another matter.
An FIR was thereafter registered alleging offences including extortion, cheating, impersonation, criminal conspiracy, and offences under the Information Technology Act. According to the prosecution, more than Rs. 200 crores were extorted from the complainant through impersonation of senior government officials and false assurances of securing bail for her husband. The prosecution alleged that cash was collected through intermediaries and transferred through hawala channels and shell entities, including entities allegedly connected with the petitioner.
The ED subsequently initiated proceedings under Sections 3 and 4 of the PMLA. The prosecution complaint alleged that the petitioner operated five proprietorship concerns, including M/s Nail Artistry and M/s Super Car Artistry, through which funds were allegedly routed. The investigation also alleged that she was linked to a residential property acquired through a benami transaction, possessed luxury vehicles allegedly purchased from proceeds of crime, booked chartered flights costing approximately Rs. 7.29 crores, and opened a Demat account for share trading allegedly at the behest of Sukesh Chandrasekhar.
The petitioner was arrested in connection with the predicate FIR on 05.09.2021 and in the PMLA case on 09.10.2021. Her earlier bail plea before the Sessions Court had been rejected.
Before the High Court, the petitioner argued that she was entitled to the benefit of the proviso to Section 45 of the PMLA because she was a woman, and therefore the stringent twin conditions for bail under Section 45 would not apply. She also sought the benefit of Section 479 of the BNSS, contending that she had already undergone detention exceeding one-half of the maximum prescribed sentence of seven years under the PMLA. It was further argued that the prosecution had cited 311 witnesses and the matter was still at the stage of arguments on charge, making early conclusion of trial unlikely.
The petitioner also relied on parity with co-accused persons who had already been granted bail, including persons allegedly involved in hawala operations and handling of proceeds of crime. She contended that she was merely a beneficiary of the alleged proceeds of crime under the belief that the funds came from legitimate sources and that she had her own independent professional and business income.
The ED opposed the application, arguing that women are not automatically exempt from the rigours of Section 45 of the PMLA and that the petitioner was allegedly a key member of an organised crime syndicate. It was further contended that she was not entitled to the benefit of Section 479 of the BNSS because multiple criminal cases were pending against her and because delays in proceedings were attributable to the accused persons.
The High Court examined the applicability of Section 45 of the PMLA and referred to Supreme Court decisions including Kalvakuntla Kavitha v. Directorate of Enforcement and Shashi Bala v. Directorate of Enforcement. The Court observed that while grant of bail to a woman under the proviso to Section 45 is discretionary, the stringent twin conditions ordinarily do not apply unless exceptional circumstances are shown. The Court held that the statutory protection is available to all women and is not confined only to “vulnerable women.” It further held that the allegations regarding the petitioner’s role and the amount of proceeds of crime were insufficient to deny her the benefit of the proviso.
The Court next considered Section 479 of the BNSS relating to prolonged incarceration of undertrial prisoners. It noted that the petitioner had undergone custody for more than four years and six months against a maximum sentence of seven years under the PMLA. Although the ED argued that delays caused by the accused should be excluded, the Court observed that successive supplementary prosecution complaints had been filed over a period exceeding three years and that even before the alleged delays attributable to the accused, the petitioner had already completed more than half of the maximum sentence period.
The Court also considered Section 479(2) of the BNSS dealing with multiple pending cases. It held that the provision should not be interpreted in a manner that completely deprives an undertrial prisoner of the benefit of statutory bail protections. According to the Court, multiplicity of proceedings is a relevant factor but does not automatically bar grant of bail after the custody threshold under Section 479(1) has been crossed.
The Court further noted that out of 18 accused persons in the ECIR, 12 had already been granted bail. It observed that co-accused persons allegedly involved in hawala operations, handling of proceeds of crime, or enjoyment of such proceeds had already been enlarged on bail. The Court held that the petitioner’s role could not be considered graver than those accused persons and that she was entitled to parity.
While noting that bail had separately been declined to the petitioner in the predicate FIR involving MCOCA offences, the Court distinguished the present PMLA proceedings on the grounds that the stringent restrictions under MCOCA differed from those under the PMLA, the maximum sentence under the PMLA was only seven years, and parity considerations favoured the petitioner in the money laundering proceedings.
Accordingly, the High Court allowed the bail application and directed release of the petitioner on furnishing a personal bond of Rs. 10 lakhs with two sureties, subject to conditions including appearance before the Special Court, surrender of passport, disclosure of residential address and mobile number, non-tampering with evidence, and refraining from committing any offence during the bail period.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
