The rigours of bail conditions under the Prevention of Money Laundering Act do not apply to women, allowing for bail until trial conclusion.

ORDER :

1. Leave granted.

2. Heard the learned senior counsel appearing for the appellant and the learned Solicitor General appearing for the respondent.

3. The appellant is an accused in a complaint filed under Section 44 of the Prevention of Money Laundering Act, 2002 (for short “the PMLA”). The appellant has been under incarceration since 25th November, 2023. Admittedly, the appellant is a woman.

4. Our order dated 19th December, 2024 reads thus:

“The learned ASG appearing for the Directorate of Enforcement seeks time. Initially, he submitted that even if an accused is a woman, notwithstanding the proviso to Sub-Section (1) of Section 45 of the Prevention of Money-Laundering Act, 2002 (for short, “the PMLA”), rigours of clause (ii) of Sub-Section (1) of Section 45 of the PMLA will apply. In short, his submission is that even if a person, who is under the age the sixteen years, or is a woman, or is a sick or infirm person, still the stringent conditions under clause (ii) of Sub-Section (1) of Section 45 of the PMLA will apply. When we called upon the learned ASG to make submissions on this aspect, he seeks time even to take instructions on this aspect.

The counter affidavit to be filed by 10th January, 2025.

List the Petition on 15th January, 2025.”

5. On its plain reading, the first proviso to Sub-Section (1) of Section 45 operates as an exception to clause (ii) of Sub-Section (1) of Section 45 of the PMLA. Therefore, when a woman applies for bail, the twin conditions in clause (ii) need not be satisfied. Though we have granted time to the learned Additional Solicitor General to make submissions in support of the submission that notwithstanding the proviso to Sub-Section (1) of Section 45 of the PMLA, rigours of clause (ii) of Sub-Section (1) of Section 45 of the PMLA will apply even to a woman, today the learned Solicitor General appears and states that rigours of clause (ii) of Sub-Section (1) of Section 45 of the PMLA will not apply to a woman, in view of proviso to Sub-Section (1) of Section 45 of the PMLA.

6. A charge has been framed. However, there are 67 witnesses and recording of evidence is yet to commence. Our attention is invited to the counter affidavit filed by the respondent and, in particular, what is stated in paragraph Nos. 9 to 16.

7. There are no antecedents of the appellant brought on record.

8. As rigours of clause (ii) of Sub-Section (1) of Section 45 of the PMLA will not apply, the Special Court ought to have treated the application as the one under Section 439 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) or Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”). Hence, the first proviso to Sub-Section (1) of Section 437 of the Cr.P.C. (the first proviso to Sub-Section (1) of Section 480 of the BNSS) will apply. As the predicate offence is not under the Narcotic Drugs and Psychotropic Substances Act, 1985, the maximum sentence can be of 7 years. The appellant is a woman. There is no possibility of the trial concluding in near future, considering the fact that 67 witnesses are to be examined. There are no antecedents of the appellant brought on record. Therefore, a case is made out for enlarging the appellant on bail till the conclusion of the trial.

9. For that purpose, the appellant shall be produced before the Special Court within a maximum period of one week from today. The Special Court shall enlarge the appellant on bail on appropriate terms and conditions including the condition of regularly and punctually attending the Special Court and cooperating with the Special Court for early conclusion of the trial. Apart from the other conditions which will be imposed by the Special Court, a condition of deposit of the passport shall be imposed. The learned counsel for the respondent shall be heard on the terms and conditions.

10. We make it clear that if the appellant fails to cooperate for early disposal of the case, it will be open for the respondent to apply for cancellatio