[Defense Deal Case] Delhi court grants bail to businessman Anoop Kumar Gupta

A Special Court in Delhi has granted bail to businessman Anoop Kumar Gupta in an alleged money laundering case connected to a purported defence aircraft deal [Directorate of Enforcement v. M/s Embraer SA & Ors]

The Court observed that during the period of investigation the probe agency, Enforcement Directorate (ED), hadn’t found it necessary to arrest him.

In an order passed on August 11, Special Judge (Prevention of Corruption Act) Virender Bhat stated that “it is not in dispute that ECIR was registered by the ED in this case in the year 2016 and after completion of the investigation qua the applicant and other accused, the complaint was filed before this Court in December, 2020. What is important to note is that during this entire period of investigation spanning over more than four years, the ED did not find any necessity to arrest the applicant.”

The order also recorded the submission of the ED counsel, who stated that the complaint was filed hurriedly as the statutory period of one year after attachment of the properties of the applicant was going to expire and, therefore, it couldn’t be said that the agency did not feel any need to arrest the applicant before filing of the complaint.

“The argument is patently without any force and has been noted only to be rejected. Even if the complaint was filed in some haste, as stated by the Counsel, there was no bar for ED to arrest the applicant before filing the complaint in case they wanted to arrest him. It is evident that the complaint was filed without the arrest of the applicant for the reason that no need was felt to arrest the applicant before filing the same,” observed the Court.

Senior Counsel Vikas Pahwa, appearing for Gupta, argued that in case the applicant was required for any custodial interrogation, he would have been arrested during the course of the investigation of this case that commenced in 2016, when the ECIR was registered by the ED and culminated in filing of the complaint before the Court in December, 2020.

It was also argued that since the ED did not feel the necessity to arrest the applicant during the course of investigation of this case, the agency was now precluded from opposing the bail application of the applicant as it would tantamount to “blowing hot and cold in the same breath”.

ED special counsel Mohd Faraz, however, contended that the nature of the case, gravity of the offences alleged besides the role attributed to Gupta should be taken into consideration while deciding the bail application. The counsel, therefore, urged the Court to dismiss the bail plea.

The Court found that there was no argument on ED’s behalf to demonstrate that Gupta hadn’t cooperated during the investigation as it had also surfaced that he had appeared before the agency on 10 occasions for his statement was also recorded 10 times.

"I find that it would be a miscarriage of justice to reject the bail application of the applicant and to take him into custody at this juncture merely for the reason that the offence alleged against him is of high magnitude," the Court said.

It also came on record that Gupta’s property worth over ₹50 crore had been attached by the ED in 2019. The Court underlined that there was nothing brought on record to show if he could influence or intimidate witnesses, if released on bail during trial, or for that matter, was a flight risk.

“I find that it would be a miscarriage of justice to reject the bail application of the applicant and to take him into custody at this juncture merely for the reason that the offence alleged against him is of high magnitude. Therefore, the bail application is hereby allowed. The applicant is admitted to bail subject to furnishing personal bond in the sum of ₹5 lakh along with two sureties of the like amount,” the Court held.

Gupta was directed to cooperate during the investigation and appear before the ED as and when called upon.

“The applicant also shall not leave country without the specific permission of this Court,” the order added.

The allegation is that M/s Embraer executed a contract to provide IAF with three aircraft where a middleman allegedly demanded a payment for facilitation of the defence contract. In 2009, Embraer reportedly agreed to pay $5.76 million to the middleman after meeting his lawyer. The kickbacks were allegedly paid through the Embraer’s subsidiaries to M/s Interdev Aviation Services Put. Ltd (IASPL). It is alleged by ED that sham agreements were entered into between M/s IASPL and M/s KRBL DMCC and the alleged kickbacks were routed to India via M/s KRBL DMCC, RAKGT to KRBL Ltd., India. Gupta is stated to be one of directors of of KRBL.

[READ ORDER]