Statutory Exemption and Discretionary Bail: Examining the Scope of the First Proviso to Section 45(1) of the PMLA

The Hon’ble Punjab and Haryana High Court (“High Court”), in its recent judgment, Mrs. Surabhi@Surbhi Duhan v Directorate of Enforcement, CRM-M-7180-2026, has examined the applicability of the statutory exemption from the twin conditions for grant of bail as envisaged under the first proviso to Section 45(1) of the Prevention of Money Laundering Act, 2002 (“PMLA”).

The case arose from an ECIR registered by the Directorate of Enforcement (“ED”) against the petitioner on 18.09.2025, followed by her arrest on 16.12.2025. In the said case, the Petitioner was the owner and person in control of M/s Certiszep Innovations Private Limited (“Company”). It was alleged by ED that the Petitioner along with the other co-accused persons was running an organized transnational cyber-fraud call centre, particularly targeting citizens of the United States. The alleged proceeds of crime were approximately INR 25 crores and were stated to have been generated through hawala channels. The petitioner was further alleged to have managed the finances of the Company, handled hawala transactions, routed illicit funds through her and her family members’ accounts, and bribed a law-enforcement official for protection in order to operate the alleged illegal business. The ED completed its investigation and filed its prosecution complaint before the concerned Ld. Special Court on 27.01.2026, relying upon 73 witnesses and 1,111 documents which were running into 6,728 pages. The petitioner, having remained in custody for over seven months, thereafter approached the High Court seeking regular bail in ECIR/CDZO-I/17/2025 dated 18.09.2025.

Key Findings

The High Court granted bail to the petitioner subject to stringent conditions, including inter alia that she would not misuse the liberty granted to her, tamper with evidence or attempt to delay the trial, or commit any offence while on bail. The High Court also analysed the first proviso of Section 45 of the PMLA Act which provides a statutory relaxation to certain classes of persons, including women, who may be released on bail notwithstanding the twin conditions prescribed under Section 45(1) of the PMLA. Upon analysing, the High Court observed that with respect to the benefit available to women under provision 45(1) of the PMLA, the High Court observed that there is no straight-jacket formula determining the factors that have to be considered while deciding the bail application of a woman accused under the PMLA. The High Court held that the determination depends upon a variety of governing factors, including the strength of the prosecution case, the nature and extent of the accused’s participation, the gravity of the offence and potential severity of the sentence, the possibility of flight risk, and apprehension of witness tampering or suppression of evidence. It was further held that provision 45(1) of the PMLA employs the expression “may be released”, thereby indicating that the statutory dispensation is enabling and discretionary in nature, and not mandatory.

Furthermore, the High Court took into consideration that the petitioner could not be subjected to indefinite incarceration merely because the allegations against her were serious, particularly when the conclusion of the trial was likely to take considerable time in view of the voluminous material relied upon by the prosecution. The High Court further noted that nothing tangible had been produced to demonstrate why the petitioner’s continued incarceration was required, particularly when there was no likelihood of her absconding.

Significance

The decision is significant as it clarifies the scope of the statutory relaxation available to women accused under the first proviso to Section 45(1) of the PMLA. While the proviso exempts women accused from satisfying the stringent twin conditions prescribed under Section 45(1), such exemption does not result in an automatic entitlement to bail. The ordinary principles governing the grant of bail continue to apply.

The judgment therefore underscores an important distinction between exemption from the twin conditions and entitlement to bail. The first proviso merely removes the statutory barrier created by the twin conditions; it does not dispense with the judicial assessment of factors ordinarily relevant to the grant of bail. The use of the expression “may be released” further reinforces that the benefit is discretionary and cannot be claimed mechanically merely on the basis of the accused falling within the protected category of women.

The judgment consequently reinforces the principle that the first proviso to Section 45(1) of the PMLA confers a discretionary statutory relaxation and not an absolute right to bail, requiring the Court to independently assess the facts and circumstances of each case before exercising its discretion.”

Authors: Sidharth Sharma, Senior Associate and Bushra Alam, Associate-II.