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2022 (3) TMI 594 - HC - Money LaunderingSeeking grant of Regular Bail - payment of bribes through middlemen Guido Ralph Haschke - HELD THAT - It is noted that the applicant is stated to be the key accused. He is accused of having played a pivotal role in the entire case, being a middleman engaged by M/s AgustaWestland for obtaining confidential information regarding the procurement process of VVIP helicopters by the Government of India. As per the allegations, one J.B. Subramanian was engaged by the applicant for typing and sending dispatches/reports in relation to developments in the procurement process to co-accused persons. He is further accused of having facilitated payment of kickbacks/bribes to IAF personnel, bureaucrats and politicians in India in order to influence the outcome of the procurement process with the end goal to benefit AWIL. From a perusal of the material placed on record, it is apparent that the applicant, through his companies M/s Global Trade Commerce Ltd., London and M/s Global Services FZE, Dubai, UAE, entered into various contracts with M/s Finmeccanica, M/s AgustaWestland, M/s Westland Helicopters, UK etc. to camouflage the receipt of kickbacks/bribe amounts. In furtherance, his companies were paid an amount of Euro 30 million, even though no work was carried out. One of these contracts is reported to have been for Euro 6,050,000 between M/s AgustaWestland Holdings Ltd. and M/s Global Services FZE, Dubai, and the second, for Euro 18.2 million between M/s Westland Helicopters and M/s Global Trade and Commerce Ltd., UK. Be that as it may, in 2017, the constitutional validity of Section 45 PMLA came to be challenged before the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. 2017 (11) TMI 1336 - SUPREME COURT , wherefore, by a judgment rendered in 2018, explicating the defects inherent in the provision and the challenges posed thereby, the Supreme Court held that the twin conditions imposed by Section 45(1) PMLA were manifestly arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India. Post the decision in Nikesh Tarachand Shah, an amendment was made to Section 45 PMLA vide the Finance Act, 2018 and brought into effect from 19.04.2018. Insofar as learned ASG has raised an apprehension that the applicant may influence witnesses and/or tamper with evidence, suffice it to note, the respondent has failed to bring out any credible circumstance to show that the applicant has directly or indirectly influenced any witness till date. Further, statements of witnesses/accused under Section 50 PMLA are stated to have been recorded and all the material relevant to the case, being documentary in nature, is stated to have already been seized and filed alongwith the prosecution complaint/supplementary complaints. In this backdrop, this Court is of the opinion that the apprehensions of the applicant influencing witnesses/tampering with evidence are not supported by any material placed on record, and on this aspect, mere pendency of further investigation is of no consequence. Even though the applicant has spent considerable time in custody, on a consideration of the peculiar facts and circumstances of the case, including the factum of the applicant evading process/investigation in India/Italy and eventually having been extradited to India, this Court is of the opinion that the applicant, having no roots in the Indian society, is a flight risk. Further, keeping in view the parameters set out in Section 45(1) PMLA and the discussion undertaken hereinbefore, this Court finds no reasonable ground to believe that the applicant is not guilty of the alleged offence or that he is not likely to commit any such offence while on bail. The present bail application is dismissed.
Issues Involved:
1. Double Jeopardy and Issue Estoppel 2. Doctrine of Specialty under Extradition Act 3. Alleged Illegal Custody and Rendition 4. Prima Facie Case and Parity in Bail Consideration 5. Application of Twin Conditions under Section 45(1) PMLA 6. Flight Risk and Influence on Witnesses Detailed Analysis: 1. Double Jeopardy and Issue Estoppel: The applicant argued that the Italian Court had already acquitted him and other accused, and thus, the continuation of proceedings in India violates Article 20(2) of the Constitution of India and principles of issue estoppel and res judicata. The respondent countered that neither the applicant nor the ED/Government of India was a party to the Italian proceedings, and thus, the trial in India is not precluded by these principles. The court noted that the Italian proceedings were against other individuals and not the applicant, and the material used in the Indian case was not available during the Italian trial. Therefore, the court found no merit in the applicant's submission. 2. Doctrine of Specialty under Extradition Act: The applicant contended that under Section 21 of the Extradition Act, he could not be tried for offences other than those for which he was extradited. The respondent argued that Article 17 of the Extradition Treaty with UAE allows for trial of connected offences. The court referred to the judgment of the Dubai Supreme Court, which confirmed the applicant's extradition for multiple charges, including money laundering. Thus, the court found no merit in the applicant's submission and stated that this issue could be tested during the trial. 3. Alleged Illegal Custody and Rendition: The applicant claimed illegal custody based on a finding by the UNHRC WGAD. The respondent countered that the UNHRC WGAD's opinion is not binding on Indian courts and was based on limited information. The court noted that the Special Court had already dealt with this issue, finding no procedural deficiencies in the applicant's extradition. Consequently, the court did not find the applicant's submission persuasive. 4. Prima Facie Case and Parity in Bail Consideration: The applicant argued that no prima facie case was made out against him and sought bail on the ground of parity with other accused who were granted bail. The respondent highlighted the applicant’s pivotal role in the alleged offences and his lack of roots in India, making him a flight risk. The court noted the applicant's significant involvement and the serious nature of the allegations, including the receipt of Euro 30 million in kickbacks. The court also observed that the applicant had evaded investigation and was a flight risk, thus denying bail on the ground of parity. 5. Application of Twin Conditions under Section 45(1) PMLA: The applicant argued against the retrospective application of the twin conditions under Section 45(1) PMLA. The respondent maintained that the conditions were revived by the Finance Act, 2018. The court noted that the twin conditions are stringent and mandatory, requiring the court to be satisfied that the accused is not guilty and not likely to commit any offence while on bail. Given the serious allegations and the applicant's conduct, the court found no reasonable ground to believe that the applicant was not guilty or unlikely to commit an offence if released on bail. 6. Flight Risk and Influence on Witnesses: The respondent argued that the applicant is a flight risk and could influence witnesses. The court noted that the applicant had evaded investigation and was extradited to India after significant legal processes. The court found that the applicant's lack of roots in India and his previous conduct indicated a high flight risk. The court also noted that the respondent failed to provide credible evidence of the applicant influencing witnesses. However, the court emphasized the applicant's flight risk as a critical factor in denying bail. Conclusion: The court dismissed the bail application, emphasizing the serious nature of the allegations, the applicant's pivotal role, his evasion of investigation, and the high flight risk. The court also applied the twin conditions under Section 45(1) PMLA, finding no reasonable ground to believe that the applicant was not guilty or unlikely to commit an offence if released on bail. The court’s decision was based on a thorough analysis of the legal principles and the specific facts of the case.
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