TaxTMI 
TaxTMI 
2026 (9) TMI 476
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Directorate (hereinafter referred to as 'ED') is that the Surbhi Duhan (petitioner herein); in active connivance with co-accused Mahesh Chandrashekhar Shetye, Rishabh Duhan and Rahul Chookar; was the real owner and in control of M/s Certiszep Innovations (OPC) Private Limited which was allegedly used to run an organized transnational cyber-fraud call centre targeting citizens of the United States of America. The prosecution has alleged that the proceeds of crime amounting to approximately Rs. 25 crores were generated through the said operations and received through hawala channels. It has been further alleged that the accused managed the financial affairs of the company, handled hawala transactions, with the assistance of her brother Rishabh Duhan and father Krishan Lal, routed illicit funds through her own accounts, those of her family members and third parties and thereafter integrated such funds to show them as legitimate before investing them in movable and immovable assets. Furthermore, the petitioner is also alleged to have paid Rs. 8 lakh per month to a person in a law enforcement agency for protection and unhindered operation of the call centre activities. As per the ED, t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uded. Learned senior counsel has further urged that the ED has cited 73 witnesses and has relied upon 111 documents running into 6728 pages whereas the trial is still at the pre-cognizance stage. Learned senior counsel has further urged that the petitioner had no role to play in the offending call Centre Company and was never ever associated with the same muchless being involved in effectively running the same. Learned senior counsel has further argued that the statement under Section 50 of PMLA cannot be read against the petitioner (herein). It has been further urged that the petitioner has been diagnosed with Pelvic Inflammatory Disease (PID), candidal infection and recurrent/chronic vaginal infection. Learned senior counsel has further iterated that the arrest of the petitioner is contrary to the mandatory safeguards contained in Section 19 of the PMLA. It has been argued that the authorised officer must possess sufficient material and must record reasons to believe, in writing, that the person sought to be arrested is guilty of an offence punishable under the PMLA. Mere suspicion, alleged non-cooperation or evasive answers do not satisfy the statutory threshold pres....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eign nationals into believing false technical problems and thereby dishonestly cheated them. The investigation further states that the illicit amounts were siphoned off through Bitcoin and CashApp gift cards, and that the proceeds of crime generated in the United States were transferred to India through a hawala network, eventually reaching her personal accounts, accounts of family members and in the accounts of related persons/firms in cash. d. During investigation under PMLA, 2002, it has been unearthed that chats containing hawala related chats between Mahesh and Ms. Surbhi have been found and that Mrs. Surbhi was in continuous communication with Mahesh Chandershekar Shetye regarding cash pickups, hawala transactions, and discussion of profit sharing between Mahesh, Rishabh and Surbhi. There were also chats about police protection (PP) between Surbhi and Mahesh in the chats indicating that both Mahesh and Surbhi were hand in glove in running the illegal call centre including managing the profits, managing the proceeds of crime received through hawala and distribution of salaries to the staff. Mahesh during investigation under PMLA has also admitted that a signature foun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....while staying at various hotels and instead used fake identity documents for the purpose of hotel accommodation. j. Regarding her source of income and transfers/transactions from her accounts which were received in her account through third parties by depositing cash in their accounts, she could not give any satisfactorily answers. She admitted that she had no legitimate source of income. k. Concerning her association with Certiszep Innovations (OPC) Pvt. Ltd., situated at 2nd Floor, Plot No. 7, Sector- 22, IT Park, Panchkula, Mrs. Surbhi Duhan categorically denied having any connection with the said call centre. However, statements of employees of the said call centre, recorded under Section 50 of the PMLA, 2002, clearly contradicted her claim. The employees in their statements confirmed the control and management of Mrs. Surbhi Duhan it was submitted by the employees that she was the owner of the call centre and was actively involved in its operations and day to day affairs. They further stated that she managed all expenses of the call centre, personally brought cash for disbursement of salaries to employees, and consistently emphasized increasing sales and perf....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the concerned authorities are well taking care of the medical requirements of the petitioner (herein) in accordance with law. Thus, dismissal of the petition in hand is canvassed for. 5. I have heard the learned counsel for the rival parties and have gone through the available record of the case. Prime Issue 6. The prime issue that arises for determination in the petition in hand is as to whether the petitioner (herein) ought to be granted regular bail. The seminal legal issue that arises for cogitation is as to what are the parameters for granting regular bail to a woman - accused under the PMLA. 7. Relevant statutory provisions I. Section 45 of Prevention of Money Laundering Act, 2002 (PMLA) "45. Offences to be cognisable and non-bailable. -- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Law 8. The precedents germane to the issues in question are, thus: I. Grant of regular bail to a woman - accused under the Cr.P.C., 1973 (i) The Hon'ble Supreme Court in a judgment titled as Prahlad Singh Bhati vs. NCT, Delhi and another, (2001) 4 Supreme Court Cases 280; has held as under: "5. xxxxxxxxxxxxxxxxxxx under Section 437 of the Code when a 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, he may be released on bail by a court other than the High Court and Sessions subject to the condition that he does not reasonably appear to have been guilty of an offence punishable with death or imprisonment for life. 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 nece....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised against an order rejecting an application for bail and against an offence exclusively decided by the Court of Sessions. There cannot be a divided application of proviso to Section 437, while exercising the power under Section 439. While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. We do not wish to state that this proviso has to be considered favourably in all cases as the application depends upon the facts and circumstances contained therein. What is required is the consideration per se by the court of this proviso among other factors." II. Grant of regular bail to a woman - accused under the PMLA, 2002 (i) The Hon'ble Supreme Court in a Judgment titled as Saumya Chaurasia vs. Directorate of Enforcement, (2024) 6 Supreme Court Cases 401; has held as under: "23. The use of the expression "may be" in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court considering the facts and circumstances of each case....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "14. We are further of the view that the proviso to Section 45(1) of the PMLA would entitle a woman for special treatment while her prayer for bail is being considered. 15. The said proviso to Section 45(1) of the PMLA reads thus:- "Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co- accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the special court so directs:" 16. A perusal of the above proviso would thus reveal that the proviso permits certain category of accused including woman to be released on bail, without the twin requirement under Section 45 of the PMLA to be satisfied. No doubt that, as argued by the learned ASG, in a given case the accused even if a woman may not be automatically entitled to benefit of the said proviso and it would all depend upon the facts and circumstances of each case. 17. However, when a statute specifically provides a special treatment for a certain category of accused, while denying such a benefit, the Court will be required to give specific reasons as to w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....into punitive incarceration; it operates purely as an ad hoc custodial measure designed to secure the attendance of the accused at trial, prevent the tampering of evidence pari passu, and preserve the integrity of the judicial process without subverting the fundamental maxim ei incumbit probation, qui dicit, non qui negat i.e., the burden of proof lies upon him who affirms, not him who denies. Recognizing that pre-trial incarceration inflicts a disproportionate toll upon classes of individuals, on account of their socio-historical positioning, the legislature has embedded statutory sanctuaries within procedural law to bridge the chasm between formal equality and substantive justice. Women accused of non-bailable offenses are frequently subjected to acute social excommunication, heightened custodial vulnerabilities, and the disruption of primary maternal obligations, which elevates them to a uniquely precarious position. To mitigate these structural handicaps, the procedural regime historically mandated a humane and liberal judicial approach under the first proviso to Section 437(1) of the Cr.P.C., the significance whereof could be fathomed by the fact that the same has been preserv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se the plea and the court records a positive judicial satisfaction that there exists reasonable grounds to believe that the accused is not guilty and is unlikely to commit any offence while on bail. This stringent operational framework reverses the conventional presumption of pre-trial liberty, and establishes detention as the norm to prevent systemic economic disruption. Recognizing, however, that an unyielding application of this statutory prohibition would inflict disproportionate hardship on certain class(s) of individuals, the legislature has provided for a concession in the form of the first proviso to Section 45(1) of the PMLA. Having derived its legitimacy in the constitutional mandate of protective discrimination under Article 15(3), this statutory proviso carves out a sanctuary, for specified classes, inter alia, namely, women. A bare perusal of the proviso reveals that the legislative object of this exception is to dispense with the mandatory application of the "twin conditions" for these protected groups wherever warranted, ensuring that procedural rigours do not supersede substantive justice. It is, however, pertinent to emphasize that the proviso to Section 45(1) PMLA....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... @ Shashi Bala Singh (supra), first proviso to Section 45(1) of the PMLA is similar in nomenclature and intent to that of Section 437(1) Cr.P.C., and are merely enabling provisions, and do not mean that the class(s) of person specified therein, should necessarily be released on bail. 12. It is a cardinal principle of statutory construction that a proviso must be construed strictly in relation to the principal enactment to which it is appended. A proviso does not operate as an independent substantive provision conferring standalone rights; rather, its legal function is strictly limited to carving out an exception from the specific field covered by the main body of the section. Since, the main body of Section 45(1) PMLA deals exclusively with the imposition of the "twin conditions", the accompanying proviso necessarily operates solely to exempt the specified categories i.e. women, minors, and the sick or infirm, from meeting the burden of those "twin conditions". The proviso cannot be extended beyond its statutory office to grant any broader immunity or create an absolute, automatic entitlement to bail. Where a provision creates an exception to a general rule of stringency, settle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s such as education, high official standing, socio-economic influence, and the specific role played in the offence are irrelevant (in case of a woman) for deciding whether the "twin conditions" stand displaced, they nevertheless be taken into account, where relevant, while adjudicating the bail plea on merits. As affirmed by the Hon'ble Supreme Court in Saumya Chaurasia (supra), lifting the statutory bar under the "twin conditions" merely re-vests discretion in the court; it does not guarantee an automatic, mechanical release. Ergo, while there cannot be any further sub-classification amongst women, as far as the applicability of proviso to Section 45(1) PMLA is concerned, the factors such as the prima facie strength of the prosecution case, the degree of intellectual or managerial participation in the money-laundering scheme, the background and specific role attributed, the potential to influence witnesses or tamper with evidence, and flight risk, etc. remain legitimate factors in deciding whether judicial discretion ought to be exercised in her favour. The Hon'ble Supreme Court in Kalvakuntla Kavitha (supra) cautioned for a judicious and prudent exercise of discretion while a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....defeasible right to bail solely on the basis of gender. (iv) The legal ambit of first proviso to Section 45(1) of PMLA is strictly confined to exempting a woman-accused seeking regular bail, from meeting the burden of the "twin conditions". Lifting this statutory prohibition does not obliterate, supersede, or override the broader principles governing bail jurisprudence. Once the "twin conditions" stand displaced, the general principles for grant/refusal of bail remain fully operative and must be satisfied independently. (v) There is no straight-jacket formula for determining the factors required to be taken into account while considering a bail plea of a womanaccused under the PMLA; as it is a question that depends upon the facts/ circumstances of a particular case, including but not limited to; the prima facie strength of the prosecution case, the nature and extent of the accused's participation, the gravity of the offence, potential sentence severity, flight risk, the apprehension of witness tampering or evidence suppression etc. No universal guidelines or parameters can possibly be exhaustively enumerated for this exercise of power by the concerned Court as....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion is substantially documentary and electronic in nature. The prosecution has already completed its investigation and has filed the prosecution complaint against the petitioner (herein). The documents and electronic devices stated to have been seized during investigation are already in the custody of the investigating agency. In the considered opinion of this Court, the petitioner cannot be subjected to incarceration for an indefinite period merely because the allegations against her are serious, particularly when the trial is likely to take considerable time. At this stage, this Court is required to examine whether there is anything tangible on record to indicate that, if released on bail, the petitioner is likely to abscond or evade the process of law. Nothing substantial has been brought to the notice of the Court from which such an apprehension can be inferred. The petitioner has remained available during the investigation and the prosecution has already filed its complaint. The mere nature of the allegations cannot, by itself, be treated as sufficient ground for the continued incarceration of the petitioner and also the sole determining factor for deciding a prayer for bail. ....