Delhi High Court
Kamal Gandhi vs M.G. Atri on 1 November, 1996
Equivalent citations: 1997IAD(DELHI)521, 65(1997)DLT99, 1997(40)DRJ106
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT S.K. Mahajan, J.
(1) On a complaint made by the Chief Enforcement Directorate (Foreign Exchange Regulation Act), Ministry of Finance, Department of Revenue, New Delhi under Section 61(2)(ii) read with Section 56 of the Foreign Exchange Regulation Act( in short referred to as the Act) for offences committed under Sections 9(1)(b), 9(1)(d) and 8(1) of the Act, the petitioner and 16 other accused persons were summoned by the Additional Chief Metropolitan Magistrate for 22nd February, 1996. Accused Nos.6,9,10,13,15 & 16 were enlarged on bail by the Court of the Acmm on 22nd February, 1996 when they appeared before the Acmm pursuant to the issuance of the said summons. The petitioner was, however, alleged to have not been served for 22nd February, 1996 and when he appeared in the Court of the Additional Chief Metropolitan Magistrate on 20th August, 1996, his bail application was rejected and he was sent to judicial custody. The petitioner made another application for the grant of bail before the Additional Sessions Judge, who by order dated 9th October, 1996 though rejected the bail application of the petitioner for regular bail, however, admitted him to interim bail on medical grounds for a period of one month from the date of the order. This period of interim bail was extended from time to time. The petitioner, being aggrieved by the order of 9th October, 1996 rejecting his bail application, has now filed present application under Section 439 of the Criminal Procedure for being admitted to bail.
(2) The allegations against the petitioner, as made in the complaint, are that during the period November, 1990 to March, 1991 he, without a general exemption from the Reserve Bank of India, received a total payment of Rs.1,75,50,000.00 from one Shambhu Dayal Sharma, out of which a sum of Rs.1,75,40,000.00 was disbursed to various persons in India and the transaction was in contravention of the provisions of Sections 9(1)(b) and 9(1)(d) of the Act. These amounts were alleged to have been received by him on instructions of one Smt.Sudarashan Arora, a resident of the United Kingdom, that is, a person resident outside India, and disbursed this money to various persons on the instructions of the said Ms.Sudarshan Arora. The petitioner was, for the first time, interrogated by the Cbi in connection with the said case on 30th May, 1991 where he is alleged to have admitted that on instructions of Ms.Sudarshan Arora, a resident of the United Kingdom, he had collected money from one Vishal @ Shambhu Dayal Sharma and had delivered it to various persons on the instructions of the said Ms.Sudarshan Arora or Ms.Jain, also of England, who had also allegedly told him to identify himself as "Suraj".
(3) A notice under Section 40 of the Act was served upon the petitioner and his statement was recorded by Fera officials on 26th May, 1995 in which he is alleged to have reiterated his earlier statement made before the CBI. This statement made before the Fera officials was alleged to have been retracted by the petitioner and it is alleged that he was forced to make the statement as he was kept in prolonged custody failing which the Enforcement Officers threatened to involve him in cases under COFEPOSA. It is alleged that the said statement has been recorded under Chapter Xii of the Code of Criminal Procedure and cannot be used in any proceedings against him. Nothing incriminatory is alleged to have been recovered from him and it is alleged that there is no evidence whatsoever to show that he was known as "Suraj". The statement of Sudarshan Arora and Tarsem Arora have also alleged to have been recorded by the Cbi, however, they have not been made accused in the case.
(4) The bail application of the petitioner has been opposed on behalf of the Enforcement Directorate. It is contended by Mr.Madan Lokur, Special Public Prosecutor, that the petitioner was involved in Hawala transactions to the extent of over Rs.1,75,00,000.00 at the instance of one Ms.Sudarshan Arora, a resident of London, during the period November, 1990 to March, 1991 and if he is admitted to bail, he is likely to abscond and may tamper with evidence.
(5) Javed, is absconding and is allegedly stated to be in Pakistan and accused 11 & 12, namely, Shahabudin Gouri and Ashfaq Hussain Lone, are in jail in cases under TADA. All other accused except the petitioner and Shambhu Dayal Sharma have been admitted to bail either by the Court of the Additional Chief Metropolitan Magistrate or by the Court of Sessions. Investigation in the case is over and Mr.Lokur has not been able to point out to me as to what evidence or witnesses can be tampered with by the petitioner in case he is admitted to bail. It is even the case of the Directorate of Enforcement that the petitioner was only working as an agent of Smt.Sudarshan Arora who has not been named as accused in the complaint. Accused persons against whom there are more serious allegations and who are allegedly involved in Hawala transaction involving more than the amount in which the petitioner is alleged to be involved have been released on bail by the Court. While deciding the bail application of one of the accused Md.Ali, the Additional Sessions Judge has observed that on 22nd February, 1996 when the accused persons were summoned to appear before the Additional Chief Metropolitan Magistrate, all the accused who had appeared on that day were released on bail, however, the accused who did not appear on the said date and were summoned for the next date were not granted bail by the Court though accusation against them were similar in nature.
(6) Though there are accusations against the petitioner that after receiving a sum of Rs.1,75,50,000.00 , on instructions of one Ms.Sudarshan Arora, from Shambhu Dayal Sharma, he disbursed the same to various persons on her instructions, the case is almost six years old and the investigation is over and all other co-accused, except Shambhu Dayal Sharma, are on bail. Petitioner has joined investigation as and when required by the I.O. For parity of reasoning, I feel it will not be proper not to release the petitioner also on bail, more so when it has not been pointed out to me by Mr.Lokur about any evidence which can be tampered with by the petitioner in case he is admitted to bail. Moreover the prescriptions annexed along with the bail application indicate that the petitioner is suffering from heart ailment and has been receiving treatment from private nursing home. He has already been admitted to interim bail on medical grounds by the Additional Sessions Judge and during this period he has not misused the liberty granted to him. The petitioner has a family in Delhi which includes his wife and school-going minor children and I do not see any reason as to why he should flee from justice in case he is released on bail.
(7) In view of the foregoing, and without, in any manner, expressing any opinion on the merits of the case and taking into consideration the allegations against the petitioner and the nature of offences alleged to have been committed by him and also taking into consideration the fact that except accused No.1, and two accused who are in jail in cases under Tada all other accused have already been admitted to bail, I direct the petitioner also to be admitted on bail on his furnishing a personal bond in the sum of Rs.1 lakh with one surety in the like amount to the satisfaction of the trial court, subject to following conditions:
(8) The petitioner will surrender his passport, if not already surrendered, to the investigation agency and will not leave the country without prior permission of the Court concerned. He will also not make any attempt to influence any witness or tamper with evidence and shall cooperate in the early completion of the trial and shall attend all the hearings, unless exempted.