Bombay High Court
J.M. Jain vs Ahmed Sodek Vaid And Another on 5 April, 1990
Equivalent citations: 1991CRILJ244
JUDGMENT
1. It is apparent that the present Criminal Appeal is not maintainable under any of the provisions of the Code of Criminal Procedure. The impugned order is a permission granted to the first respondent accused to go abroad. Such an order is not appealable. Hence, on the request of Shri Khan, the learned Counsel appearing on behalf of the complainant, the same is permitted to be converted into an application under section 482 of the Code of Criminal Procedure.
2. The first respondent is facing a prosecution for contravention of the provisions of the Foreign Exchange Regulation Act, 1973. He is a South African national. On 28th February, 1990, on information being received, the Narcotic Control Bureau raided room No. 201 of Hotel Diplomat, Colaba. At the time of the raid the first respondent along with one Shaikh Mohammed Usman was present. On search, an amount of U.S. $ 2190 in travellers cheques, U.S. $ 230 and pound 150 pounds in currency notes and Rs. 9,63,000/- and certain incriminating articles were seized. In the statement recorded under section 40 of FERA, respondent No. 1 stated that he was occupying the said room, that an amount of Rs. 9,50,000/- had been delivered to him by the said Shaikh Mohammed Usman for disbursement to various parties in India. The said amount was forwarded by one Dhirubhai of London to one Rajeev Jeeva of Bombay who in turn forwarded the said amount to the first respondent through the aforesaid Shaikh Mohammed Usman. On the aforesaid facts, the first respondent was arrested on 1st March, 1990. On 5th March, 1990 the first respondent was released on bail in the sum of Rs. 1,85,000/-.
3. On or about 23rd March, 1990 the first respondent made an application for permission to go abroad and by the impugned order the learned Chief Metropolitan Magistrate, Esplanade, Bombay was persuaded to grant the permission on an additional cash deposit of Rs. 50,000/-. The first respondent was directed to file the consent of the original surety. The passport of the first respondent was ordered to be returned to him. The said order is annexed at page 8 of the compilation. It shows that the same is a communication of the order to the Enforcement Directorate. It is on a cyclostyled form wherein blanks have been filled in. It is not known whether a separate reasoned order has been passed. It is, however, apparent that the said order was passed without notice to the Enforcement Directorate.
4. In my judgment, it is improper to pass such orders as is impugned in the present proceeding without notice to the prosecuting agency and without affording it the adequate opportunity of being heard. When such applications are filed, the truth or falsity of the averments contained in the application have to be tested and that can be done only after giving notice and hearing the other side. If such orders are passed without affording the aforesaid opportunity, the said orders suffer from the breach of the principles of natural justice. This can often lead to traversity of justice. The order permitting the accused to go abroad may on the face of it appear to be innocuous but can have serious consequences. The first respondent is a foreign national who is found in possession of huge amounts both in foreign as also Indian currency. There are serious allegations in respect of contravention of FERA. It is not unknown that in many cases foreigners involved in similar offences who are permitted to go abroad have not returned. It is, therefore, desirable that before such permission is granted, the pros and cons of the case are examined carefully and this can be done only after giving the contending parties a right of being heard. When an order is passed either granting or refusing permission, the same should be supported by a reasoned order so that the same can assist the higher Court in appreciating the reasons that have appealed to the learned Magistrate in passing his order.
5. For the reasons enumerated above, the impugned order dated 23rd March, 1990 is set aside. It will be open to the first respondent if he is so advised to move the learned Chief Metropolitan Magistrate after giving an adequate notice of his application to the Directorate of Enforcement. The learned Chief Metropolitan Magistrate will give an adequate opportunity both to the first respondent and the Directorate of Enforcement of being heard. He may thereafter dispose of the application by giving a reasoned order on its own merits and in accordance with law.
6. The petition is allowed.
7. Rule is made absolute in the aforesaid terms.
8. Order accordingly.