Bombay High Court
S.G. Tendulkar, Asst. Director vs Shah Mohd. Habibullah Mukhiya on 1 January, 1800
Equivalent citations: 1990(49)ELT497(BOM)
JUDGMENT
1. Criminal Application No. 650 of 1990 has been filed by the Assistant Director, Enforcement Directorate, Bombay for cancellation of the order dated 21st February, 1990 of this Court (Coram: Puranik, J.) in Criminal Application No. 378 of 1990 directing the first respondent Accused to be released on bail in the sum of Rs. d1,00,000/-(rupees one lakhs).
2. Criminal Application No. 684 of 1980 is filed by the accused for relaxation of the terms and conditions of bail imposed by the order dated 21st February, 1990 wherein he was restrained from leaving Bombay without the permission of the Court.
3. It is the case of the prosecution in short that the accused is the proprietor of M/s. Expo Krafts which is engaged in export of woolen carpets etc. According to the prosecution, the accused took advantage of the export policy to he tune of Rs. 14,00,000/- (rupees fourteen lakhs) but failed to perform his obligation of repatriating foreign exchange in the like amount. It is the further case of the prosecution that further enquiries revealed that the accused was concerned with another concern by name M/s. Haco International which he was running in the name of persons not residing in India but in Saudi Arabia. The accused through this firm exported goods worth over rupees five crores. The said concern received an amount equivalent of Rs. 1.5 lakhs in U.S. dollars outside India. It enjoyed the benefit of incentives to the tune of about Rs. 1.42 crores. Thus, according to the prosecution, the accused is guilty of various provisions under the Foreign Exchange Regulations Act.
4. The accused filed in this Court Criminal Application No.911 of 1989 for anticipatory bail and this Court (Coram : Tated, J.) vide his order dated 17th April, 1984 was pleased to reject the same. The wife of the accused thereafter filed an application for anticipatory bail and by an order dated 25the February 1989, she was granted anticipatory bail in the sum of Rs. 5 lakhs. The accused, thereafter, filed in this Court Criminal Application No.1590 of 1989 and this Court (Coram: Suresh,J.) by its order dated 27the July, 1989 was pleased to reject the same. The accused. thereafter filed in the Sessions Court an application for anticipatory bail. This was moved at the residence of the learned Judge and by an order dated 25th January, 1990 an order of interim anticipatory bail was granted. It was at that stage that the accused was arrested on the 31st January,1990 and was released on bail in terms of the above order dated 25th January, 1990. After hearing by an order dated 13th February, 1990 the learned Sessions Judge was pleased to reject the application for anticipatory bail. Hence the accused was arrested on 14th February, 1990. The accused, thereafter, filed Criminal Application No.378 of 1990. The accused, thereafter, filed Criminal Application No. 378 of 1990 wherein by an order dated 21st February, 1990 this Court (Couram: Puranik, J.) was pleased to grant bail to the accused in the sum of Rs. 1,00000/- (rupees on lakhs). It was observed in the said order:-
"Heard Mr. Napade for Petitioner. No affidavit is filed by the Respondent thought directed yesterday to do so. Perused the record. The investigation is going on since last over one year. The petitioner has been interrogated and documents seized. There are no allegation that the Petitioner is likely to abscond. Petitioner is an Indian citizen holding immovable property in Bombay. He is a heart Patient. Hence bail to petitioner in the event of arrest on surety bond of Rs. 1,00,000/- or in the alternative cash deposit with P.R. in the like amount and condition not to leave the City of Bombay without permission of the Court and make himself available whenever required by the Investigating Officer."
5. It is in the above circumstances that the Assistant Director, Enforcement Directorate, on 26th March, 1990 has presented the present Criminal Application No. 650 of 1990 for cancellation of the aforesaid bail.
6. Shortly stated it is the case of the Assistant Director that on affidavit dated 21st February, 1990 opposing the grant of bail had been sworn and kept ready for filing for the purpose of opposing the grant of bail. The learned counsel appearing on his behalf, however, got late and could not reach this Court till after the order if bail was passed. The affidavit opposing the bail remained to be filed and hence the order granting bail without considering the Deptt.'s opposition is liable to be reviewed.
7. It is the further case of the prosecution that during the course of the search of the residential premises of the accused it was revealed that on 4th January,1990 a bill of lading dated 10th December,1989 was received by the accused. The said bill of lading showed that a consignment had been shipped by the accused from Dubai at his address in Bombay. The said bill of lading had been issued on a passport bearing No.A 401107 belonging to the accused. The passport, which the accused surrendered to the Enforcement Directorate, bore No. X 187115 dated 15th November, 1984. According to the prosecution, the accused is shown to be in no possession of two passports at the same time. Though the later passport namely X 187115 dated 15th November, 1985 had been surrendered, the accused is in possession of the passport bearing No. 401107 dated 3rd July, 1985. There is, therefore, a serious apprehension that the accused would jump bail and not be available to face the trial. It is the further case of the prosecution that in the statement recorded on 29h January, 1990 the accused had denied his holding the second passport. In the affidavit filed on 3rd April 1990 he stated that the said passport had been canceled long back. The above inconsistent and false stands taken by the accused strengthened the apprehension of the Directorate that the accused may jump the bail. It is lastly contended that though the Criminal Application No. 911 of 1989 for anticipatory bail had been rejected on 17th April, 1989 and Criminal Application No.1590 of 1984 was rejected on 27th July, 1989 the accused had absconded right from 17the April 1989 to 20th January, 1990 when he applied to the Sessions Court for anticipatory bail. When the statement of the wife of the accused was recorded on 4th January, 1990 she stated that the accused was not traceable and his whereabouts are not known. It is further submitted that the Directorate of Enforcement had enquired with the Passport office about the issue of the second passport bearing No. A-401107 dated 3rd July, 1985. The passport office initially replied that no such passport had been issued but by its letter dated 23rd March 1990 confirmed having issued the aforesaid passport to the accused. The statement of the Traveling Agent recorded during the investigation revealed that the accused had purchased air tickets for himself and some other persons from Bombay to Delhi and Delhi to Kathmandu and back. It was possible for the accused to have undertaken a journey from Kathmandu to Dubai without making any endorsement on the passport.
8. Placing reliance on the aforesaid facts Shri Gupte, appearing on behalf of the Assistant Director, Enforcement Directorate, strenuously urged that this is a fit case for cancellation of the order of bail dated 21st February, 1990. Shri Napade the learned Counsel appearing on behalf of the accused submitted that the prosecution had been given adequate opportunity of file an affidavit-in-reply to the application for bail. If the prosecution failed to take advantage of the opportunity it had to thank itself for the same. The present application for cancellation is filed as late as on 26th March, 1990 i.e.after about a month and five days. According to Shri Naphade, the present application lacks bona fides and does not make out just and sufficient ground which would warrant the cancellation of the order of bail. He submitted that had the accused an intention to flee from justice he had sufficient opportunity right from 17th April 1989 to 21st February 1990 and from 21st February 1990 upto date. He pointed out that the accused had been attending to the hearing of this application in Court. He submitted that the prosecution has unduly highlighted the second passport of the accused which may have been taken out on account of the first passport being missing. After the first passport was traced, it is the case of the accused that the second passport was got canceled and this was way back on 30th January, 1985.
9. Having hard the rival contentions, in my judgment, it does appear that the accused was holding two passports. I am not satisfied with the explanations sought to be offered by shri Shri Naphade on behalf of the accused that the accused had denied possessing the second passport in his statement dated 29th January, 1990 as he might have forgotten. The statement had been recorded after a lapse of almost five years. In my view if the accused were to have lost the passport and for that reason obtained another passport which later passport he got canceled on the first passport being traced, it is not a fact which would fade out of memory by a lapse of five years. In the affidavit dated 3rd April, 1989 the accused has averred that he has canceled the second passport long back. In the affidavit dated 9th April, 1990 he has averred that it was canceled on 30th July, 1985. I am not satisfied with this explanation either. If that were the case it is difficult to perceive how the bill of lading dated 12th December 1984 came to be booked on this passport. Be that as it may: The question that arises for determination is whether the prosecution has made out a just and sufficient cause for cancellation of bail. The fact that the Counsel on behalf of the Assistant Director could not reach the Court in time and the affidavit seeking to oppose the bail could not be filed can be no ground for cancellation of bail. Hence whatever is contained in the affidavit-in- reply, which was proposed to be filed for opposing bail, cannot be taken into account for canceling the bail. The only fresh material that was received by the prosecution was in the form of letter dated 23rd March, 1990 addressed by the Passport Office, Bombay confirming the issue of the second passport. The said letter was accompanied by the application for passport and the other ancillary documents. A statement of the travel agent recorded during the investigation revealed that the accused had purchased air tickets for himself and some other persons from Bombay to Delhi and Delhi to Kathmandu and back.
10. Placing reliance on the above, Shri Gupte sought to contend that this is sufficient material to cancel the bail. According to him, it is open to the accused by going via Delhi to Kathmandu to proceed to any foreign country without making any endorsement on his passport. In my judgment, the above material would not justify the cancellation of the order of bail.
11. Though I am not inclined to cancel the order of bail, in my view, this is a fit case where additional conditions for the continuance of the order of bail should be imposed upon the accused. will be entitled to continue on bail on his furnishing within a period of two weeks from today bail bonds in the additional sum of Rs. 5,00,000/-(rupees five lakhs) made as per the order passed on Criminal Application No.378 of 1990. While on bail the accused will be required to report to the Assistant Director of Enforcement, Mittal Chambers, Bombay-400 021 every day for a period of three months and thereafter once in a week initially for a period of six months.
12. In view of this order passed in Criminal Application No. 650 of 1990, the criminal application No. 684 of 1990 for relaxation of the terms of bail is liable to be rejected.
Criminal Application No.650 of 1990 is partly allowed.
The bail granted in Criminal Application No.378 of 1990 will continue on additional conditions i.e.on accused furnishing within a period of two weeks from today bail bonds in the additional sum of Rs. 5,00,000/- (rupees five lakhs) with one surety of the like amount or option of the cash deposit of the like amount. this will be in addition to the cash amount of Rs. 1,00,000/-(rupees one lakh) deposited as per the order passed on Criminal Application No. 378 of 1990. While on bail the accused will report to the Assistant Director of Enforcement, Mittal Chambers, Bombay-400 021 every day for a period of 3 months and thereafter once in a week initially for a period of six months.
Rule in Criminal Application No. 650 of 1990 is made absolute in the above terms.
13. Rule in Criminal Application No 684 of 1990 is discharged.