Delhi District Court
Cc No.4/2011 E.D. vs . Tarique Ahmed Dar Page 1 Of 9 on 9 May, 2012
IN THE COURT OF SH. P.S. TEJI, DISTRICT JUDGE &
ADDL. SESSIONS JUDGE, I/C (EAST), SPECIAL JUDGE
(PREVENTION OF MONEY LAUNDERING ACT) :
KARKARDOOMA COURTS, DELHI
C.C. No.04/2011
ECIR No.ECIR/02/DZ/2008/AD(SC)/VM
Shri Prabhakant, Deputy Director
Directorate of Enforcement
Versus
Tarique Ahmed Dar
O R D E R
Directorate of Enforcement has filed the present complaint under section 44 read with section 45 of Prevention of Money Laundering Act, 2002 (hereinafter shall be referred to as "PML Act") against accused Tarique Ahmed Dar for the offences under section 3 & 4 of PML Act.
2 I have heard Ld. Special PP for Directorate of Enforcement as well as Ld. Counsel for accused on charge and have gone through the material available on record.
3 The allegations levelled in the present complaint are that on 29.10.2005 at about 5.30 p.m. to 6.00 p.m., bomb blasts CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 1 of 9 took place in Delhi at various places including Sarojini Nagar Market, Paharganj Market and in Govindpuri Area in which number of persons were killed and injured. Special Cell of Delhi Police registered three FIR Nos.533/2005, 560/2005 and 149/2005 and filed its report in the Courts for the offences under section 302/307/121/121A/120B IPC read with section 3,4 and 5 of Explosive Substances Act and under section 16,17,18,20 and 23 of Unlawful Activities Prevention Act. It was alleged that accused was the main person behind the bomb blasts and was regularly in contact with Abu Al Kama, operative of Lashker eTayabba of Pakistan. Accused and other received huge amounts of money from different persons residing abroad. It was alleged in the Police Report that accused received Rs.4,94,517/ in his account from M/s Almasha Trading, Dubai on 26.09.2005, Rs.4,00,113/ and Rs. 4,88,277/ on 13.05.2005 and 27.05.2005 from one Akbar Khan. It was also alleged that foreign exchange was deposited in the bank accounts of accused. It is also mentioned that accused had also received Rs. 14,01,000/ from one Fareooq Ahmed who received the money through Hawala channels and same was withdrawn by accused from his account with J & K Bank from time to time. It is also alleged that he received Rs. 5 lacs from AbuAlKama for conducting the CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 2 of 9 bomb blast. One Farooq Ahmed used to receive money from Hawala dealers which was later on transferred to the account of accused. It is alleged that accused was arrested by the Special Cell of Delhi Police and four chargesheets/complaints were filed against him in the Court. On 17.10.2008, Directorate of Enforcement registered a case against accused and others under section 121 and 121A of IPC. The involvement of accused in offences under section 121, 121A, 302, 307 IPC are scheduled offences as described in PML Act. It is also alleged that accused received a sum of Rs.4,88,277/ in his bank account just two days prior to the blast. Investigation revealed that accused withdrew and made payment of huge amount in cash from his bank accounts. Investigation further revealed that accused was employee of Johnson and Johnson company, Srinagar. His salary was Rs.8,000/ per month and during the period of his employment with the company, he received total emoluments of Rs.4,34,177/ which were less than the total deposits in his bank account. It is alleged against him that he was not having any other source for deposit of such huge amount in his accounts and that the same were proceeds of crime for conducting bomb blasts and waging war against the nation. The Directorate of Enforcement issued provisional attachment order CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 3 of 9 dated 10.07.2009 for attachment of bank accounts of accused and filed a complaint before Adjudicating Authority which was confirmed vide order dated 9.11.2009.
4 Ld. Counsel for accused has argued on the procedure of framing charge against accused. He was asked to make submissions on the merits of the case but he confined his arguments only with regard to procedure for framing charge. Ld. Defence counsel has argued that accused is liable to be discharged as no pre summoning evidence has been led by the Directorate of Enforcement. He has further argued that the present complaint has been filed by a private complainant and no presummoning evidence has been adduced by the complainant to establish the allegations so as to enable the Court to frame charge against the accused.
5 To appreciate the contention of ld. Defence counsel, I have gone through the provision of section 200 of Cr.P.C. It provides that before taking cognizance, Magistrate shall examine the complainant and witnesses. But proviso (a) to Section 200 further provides that when a complaint is made by a Public Servant acting or purporting to act in discharge of his official duty, Magistrate need not examine the complainant and witnesses. In the present case, FIR No. CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 4 of 9 533/05, 560/05 and 149/2005 were registered against accused by the Special Cell of Delhi Police on the basis of which Directorate of Enforcement registered the present ECIR No. ECIR/02/DZ/2008/AD (SC)/VM against the accused. After investigation, present complaint was filed before this Court. The complainant Sh. Prabhakant, Dy. Director of Enforcement Directorate filed the present complaint being public servant in discharge of his official duty. 6 The contention of ld. Defence counsel that recording of presummoning statement of the complainant is mandatory, does not find any basis in view of proviso to section 200 of Cr.P.C. It would be pertinent to mention that in the present case a complaint has been filed by Sh. Prabhakant, Dy. Director of Enforcement Directorate being a public servant in discharge of his official duties. On the basis of investigation conducted by the Directorate in ECIR No.ECIR/02/DZ/2008/AD(SC)/VM. 7 I have gone through the ratio of judgment of Hon'ble Apex Court in case titled Dy. Chief Controller of Imports and Exports Versus Roshanlal Agarwal and ors. 2003 AIR (SC) 1900 in which it was held that if a public servant acting or purporting to act in the discharge of his official duties has made the complaint in CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 5 of 9 writing, the Magistrate need not examine the complainant and witnesses. In para 10 of the judgment it was observed as under : "The High Court has gone to the extent of saying that as the Deputy Chief Controller of Imports and Exports had not been examined as a witness, the procedure prescribed by Section 200 Cr.P.C. had not been followed and, therefore, the order passed by the Magistrate taking cognizance of the offences was illegal. With respect, we find it difficult to comprehend the aforesaid reasoning of the High Court. Section 6 of the Imports and Export (Control) Act provides that no Court shall take cognizance of any offence punishable under Section 5 except upon a complaint in writing made by an officer authorised in this behalf by the Central Government by a general or a special order. That the Deputy Controller of Imports and Exports had been so authorised by the Central Government is not in dispute. Proviso (a) to Section 200 Cr.P.C. lays down that if a public servant acting or purporting to act in the discharge of his official duties has made the complaint in writing, the Magistrate need not examine the complainant and the witnesses. In view of Twelfth clause of Section 21 IPC which provides that every person in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government shall be a public servant, the Deputy Chief Controller of Imports and Exports is a public servant. It is also not the case of the accusedrespondents that the Deputy CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 6 of 9 Chief Controller of Imports and Exports is not a public servant. The complaint was filed by him in discharge of his official duty. The learned Magistrate was, therefore, fully justified in taking cognizance of the offences without recording the statement of the complainant."
8 In the present case also, the investigation was done by the Directorate of Enforcement against the accused for acquiring proceeds of crime. The present complaint has been filed by the Deputy Director of Enforcement Directorate and he is a public servant. It has not even been disputed by the accused that the Deputy Director of Enforcement Directorate is not a public servant. He has filed the present complaint in the discharge of his official duties and for that reason, he need not to be examined before taking cognizance. There was no need to examine him and the witnesses of the complainant before taking cognizance and framing charge against the accused. 9 The Enforcement Directorate also filed documents along with the complaint. Document D1 is the copy of the complaint in FIR No. 149/2005 dated 19.11.2005 filed by Special Cell of Delhi Police. Document D2 is the copy of complaint in FIR No. 533/2005 dated 29.10.2005. Document D3 is the copy of final report in FIR No. 560/2005 dated 29.10.2005 and document D4 is the copy of final CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 7 of 9 report dated 29.10.2005 whereas document D5 is the copy of supplementary complaint in FIR No. 560/2005 filed by Special Cell of Delhi Police. Copy of ECIR No. ECIR/2/DZ/08/AD(SC)/VM dated 17.10.2008 is document D6. Document D7 is the copy of order dated 13.02.2009 passed by the Court whereby permission to record statement of accused was granted. Copy of statement dated 22.04.2009 of accused is document D8. Documents D9 and D10 are the copies of letters dated 29.03.2007 and 11.05.2006 respectively written by HDFC Bank along with their annexures. Copy of letter dated 15.05.2006 of J & K Bank along with enclosures are document D11. Copy of provisional attachment order dated 10.07.2009 and corrigendum dated 04.08.2009 are document D12. Document D14 is the copy of complaint filed before the Chairperson, Adjudicating Authority whereas document D15 is the copy of order dated 9.11.2009 passed by the Adjudicating Authority. 10 The Directorate of Enforcement has also filed list of witnesses. They have made seven witnesses. Witness Sharad Chaudhary is the Assistant Director of Enforcement Directorate. ED has also made Sh. Sanjeev Kumar Yadav, ACP of Special Cell, Delhi Police, Lodhi Road as witness. They have also sought to examined the CC No.4/2011 E.D. Vs. Tarique Ahmed Dar Page 8 of 9 concerned ACPs of Special Cells of Northern Region and of Southern Region. ED has also made Branch Manager of HDFC Bank Ltd., Residency Road, Srinagar as witness. They have also made Branch Manager of Jammu and Kashmir Bank, Batmallu, Srinagar and Branch Manager, State Bank of India, Residency Road, Srinagar as witnesses. 11 From the material as well as documents brought on record, the complainant/Directorate of Enforcement has shown prima facie case against the accused that he was involved in offences which was scheduled offences under the PML Act and received money as proceeds of crime being involved in offences for which chargesheets have been filed against him. Prima facie, it has also been shown that accused by his said illegal activities committed scheduled offences as mentioned in PML Act and the properties acquired by him are the proceeds of crime as defined under Section 2(u) of PML Act. Consequently, a prima facie case for framing charge under Section 3 punishable under Section 4 of PML Act is made out against accused. Charge be accordingly framed.
Announced in the open Court ( P.S. TEJI )
Dated: 09.05.2012 District Judge & ASJ, I/C(East)
Special Judge (PML Act)
Karkardooma Courts : Delhi
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