Madras High Court
A.N. Dyaneswaran vs Enforcement Officer, Enforcement ... on 5 August, 1996
Equivalent citations: 1997(1)CTC237, 1996 A I H C 5641, (1997) 1 CURCRIR 86, (1996) 2 MADLW(CRI) 569, (1997) 3 ALLCRILR 83, (1997) 1 CTC 237 (MAD)
ORDER Shivappa, J.
1. The petitioner being unsuccessful to get an order of bail by the Courts below has approached this Court for similar relief.
2. According to the respondent, the petitioner herein has contravened the provisions of Section 8(1) of the FERA, 1973 for having otherwise acquired U.S.S 5061. Singapore $ 527 and Malaysian $ 210. Further, he has made payments totalling to Rs. 1,00,59,195 during 1994-95 to Shri C. Sampath Kumar of Madras as per the instructions of Shri. Nadadur Varadhan of Santa Monica, USA., a person residing outside India, in contravention of the provisions of Section 9(1)(d) of the FERA, 1973. It is on this basis, the investigation is proceeded by the Enforcement Directorate and it is still pending.
3. The counsel for the petitioner contended that arrest and remand of the petitioner to judicial custody is not valid in law and there is no proper remand and the petitioner is ailing and his mother is also in coma, that Sampath Kumar, co-accused was already released and his case is in no way different, and since the co-accused has already been released, the petitioner is entitled for release on that ground and lastly that there is no likelihood of tampering with witnesses or fleeing from justice. Though the learned counsel urged these contentions, he mainly concentrated on the petitioner's illness and the illness of his mother, release of co-accused and there is no likelihood of tampering in the event of his release.
4. It is pleaded in the statement that the petitioner is suffering from swollen lymph glands, breathlessness, numbness in right hand and stiffness on back, heavy odemae in both legs and certain infection and submitted that certain tests to be carried out on him and also alleged that he is losing weight and requires constant care by a doctor of his choice. He was admitted in the Government General Hospital as an impatient from 1.7.1996 to 18.7.1996 and discharged by the High Power Committee attached to the Government General Hospital, Madras on 18.7.1996, and he was advised to continue certain medicines prescribed by the Specialist.
5. It is true, sickness is a factor to be considered while considering the prayer for bail. But it is not every sickness that entitles a person to be enlarged on bail. The circumstances of the case and their cumulative effect, seriousness of the offence, likelihood of the accused absconding or tampering with witnesses, the nature and seriousness of the sickness and the medical treatment and amenities available in the prison have also to be borne in mind. A term of doctors have examined the petitioner and they have ruled out any serious ailment and prescribed medicine. The diseases referred to are common in an advanced age and when medicines are prescribed, they can be administered in jail as recommended by the specialists. In a similar situation the Apex Court in State v. Jaspal Singh Gill, when the accused pleading sickness as the ground, got bail by the High Court, observed that the High Court should not have enlarged the accused on bail in the larger interests of the State.
6. Regarding the contention that a co-accused has been released and the petitioner is entitled for release on that ground, it is settled principles of law, whenever a co-accused similarly situated is granted bail the same benefit should be given to another accused. In essence, the co-accused must be similarly situated. The reason what weighed with the Court while releasing a co-accused in a matter to be taken into consideration in considering the case of a co-accused. It is stated in the statement of objection that there is nexus between the petitioner and Shri. Sampath Kumar. But, while releasing him on bail, the Additional Chief Metropolitan Magistrate (E.O.II), Egmore, Madras, in his order has observed as follows:-
"Even though the respondent has stated in the written objection and prayed for the dismissal of the bail petition, the counsel for the respondent argued before this Court that since the accused had undertaken to produce certain vital documents and details at the time of giving statement for the purpose of further investigation the department requires the presence of the accused for gathering further evidence and therefore stringent condition may be imposed in the interest of investigation necessarily and that apart from that there is no serious objection and the accused may be released on bail without prejudice to the department's case."
In addition to this, it is stated by the Department as follows:-
"(i) The foreign currencies seized from the residence of the petitioner has nothing to do with the foreign currency seized from the person of Shri. Sampath Kumar. The foreign currencies seized from Shri Sampath Kumar and one from the petitioner, are entirely different. Hence, on this ground, they are not co- accused.
(ii) The next charge against Shri. Sampath Kumar is under Section 9(1)(a) in respect of various amounts totalling to Rs. 1,00,06,063.65. credited to the account of a person resident outside India. Whereas, in the case of the petitioner, he has been charged under Section 9(1)(d) for paying various amounts totalling to Rs. 1,00,59,195 on the instructions of person resident outside India. Hence, the petitioner has been charged under different sections of FERA and he cannot claim himself as a co-accused.
(iii ) With regard to the third charge against Shri. Sampath Kumar under Section 9(1)(d) for Rs. 5,50,000 for making payments to various persons in India, on instructions of person resident outside India. It is stated that this charge is totally an independent against Shri. Sampath Kumar.
(iv) Shri. Sampath Kumar was arrested vide R.R.No. 66/96 on 15.5.1996 and remanded to judicial custody on 16.5.1996, whereas the petitioner was arrested on 13.6.1996 in R.R.No. 75 of 1996 and produced for remand on the same day and he was the only accused in the said R.R.' Therefore, the release of Sampath Kumar need not be a factor to be take into consideration to consider the case of the petitioner.
7. Regarding tampering, sequence of events disclosed by the Department are as follows:-
"(1) 19.1.1996. The I.T. Department searched the premises at M.26, Anna Nagar, Madras, resulted in the seizure of U.S.S. 5061, Singapore $ 227, Malaysian $ 210 and I.C. and certain other documents; (2) 5.2.1996 - The I.T. Department, passed on the documents including US $ etc. (3) 12.2.96 -Summons for appearance on 16.2.96; (4) 17.2.96 - Summons issued by Shri B. Kistoorchand, E.O. to both the addresses. The petitioner not available at both address and hence, served under Rule 3(c) of FERA Rules 1974 to appear on 19.2.1996; (5) 20.2.96 - Writ Petition No. 1948 of 1996 came up for admission and was dismissed in to on 19.3.96; (6) 19.3.96 - W.P.No. 1948 of 1996 was rejected by the Hon'ble Justice Shivaraj Patil; (7) 19.3.96 - Another summons issued for appearance on 25.3.96; (8) 25.3.96 - The petitioner did not appear; (9) 27.3.96 - The petitioner appeared and undertook to appear on 29.3.96 at 11.00 A.M. (10) 29.3.96 - Petitioner sent a letter that his mother is not well. (11) 8.4.96 - The department sent another summons for appearance on 10.4.96; (12) 10.4.96 - The petitioner did not appear; (13) 12.4.96 - Another summons issued for appearance on 15.4.96 (both on 8.4.96 and 12.4.96). Summons were served under Rule 3(c) of FERA Rules, 1974; (14) 15.4.96 -Petitioner did not appear; (15) 18.4.96 - Complaint under Section 40(3) of FERA, 1973 filed for non-appearance before the A.C.M.M., E.O.II Egmore, Madras (CC.61/96); (16) 30.4.96 - Sessions Court - Anticipatory bail rejected; (17) 9.5.96 - High Court, anticipatory bail rejected; (18) 17.5.96 - Again, summons issued for appearance on 21.5.96; (19) 21.5.96 - Letter seeking for adjournment; (20) 23.5.96 - C.C.No. 61 of 1996 posed (21) 28.5.96 - Again C.C.No. 61 of 1996 postted for orders; (22) 28.5.96 - Non-bailable warrant ordered to be issued by A.C.M.M."
8. The way he avoided the summons, interrogation, resorted to several proceedings resulted in delay, are matters to be taken into consideration. Having regard to the contacts he has being a top official in the I.A.S. Cadre, if released, he may radiate his influence to unsettle the existing situation to his advantage and even may put obstacles to the investigation resulting in further delay. It is also submitted that having regard to the magnitude of the offence, the nature of the probe has to be made both in India and abroad and having regard to his contacts in various Departments, his release is not conducive for fair investigation. After all, ultimate goal of denial of bail is not to put more people in jail but merely to provide conducive atmosphere and faster flow of investigative methodology to get at the truth to reinstill respect for law.
It is in everybody's experience that delay will drain the just investigation of its value and that people come to believe as sign of inefficiency. At this stage, Court has to keep a balance between rights of investigation agency on the one hand and right of liberty of the accused on the other hand. It is always said: better to light a candle than to curse darkness". In the sense, withholding bail may create a conducive atmosphere and granting bail may likely to result in unearthing the truth. It is good to cherish and protect individual liberty but with limitation without affecting rule of law. When allegation is that offence touching the economy of the Nation has been committed, the cry of liberty should not be of paramount consideration. The prison authorities to keep watch over the health condition of the petitioner, in the event of deterioration in health, without loss of time arrange to provide adequate medical treatment and care, if not available in the hospital maintained by the prison. Therefore, I am of the opinion that none of the points raised by the counsel has any substance, and they are liable to be rejected. Accordingly, the petition is dismissed.