Mohd. Ameer Deen Habib And Another vs Enforcement Directorate And Another on 8 August 1996

Delhi High Court
Mohd. Ameer Deen Habib And Another vs Enforcement Directorate And Another on 8 August, 1996
JUDGMENT

Jaspal Singh, J.

1. Mohd. Ameer Deen Habib (hereinafter referred to as Ameer) and S.S.O. Seyed Arif (hereinafter called Arif) are Indian citizens though presently residing in Dubai. Both are facing arrest in a complaint pending in Delhi under Ss. 8(1), 8(2) read with S. 14 of the Foreign Exchange Regulation Act, 1973 (hereinafter referred to as FERA) read with Central Government Notification No. F-1/3/73 dated 15-6-1977 and in yet another complaint pending in Mumbai for non-compliance of summons issued under S. 40 of the FERA, 1973. As far as Ameer is concerned, besides the two matters noticed above, he is wanted in yet another complaint which is under S. 61(2)(ii) read with S. 56 of the FERA, 1973. He is also an accused in what is now known as “Hawala case” pertaining to First Information Report No. RC1(A)/95 ACU (VI) dated 4-3-1995. It is pending before the learned Special Judge, Delhi. In all the matters noticed above, non-bailable warrants stand issued.

2. Through this petition moved under S. 438 of the Code of Criminal Procedure, both the petitioners are seeking anticipatory bail.

3. Though the arguments bordered, if I may say so with respect, extravagant prolixity I feel I should rather first cut into the flesh of the cases being faced by the petitioners. This would provide the necessary backdrop.

4. It all started during the investigation of two cases registered by the C.B.I namely RC1(A) 95-ACU(vi) C.B.I. and RC5(SI) 91-SIU(V)/SIC.II C.B.I. In the first it was revealed that S. K. Jain, B. R. Jain, N. K. Jain and J. K. Jain had received huge sums of money through illegal Hawala channels and had disbursed the same to several persons including public servants and political leaders. The investigation in the second case revealed that the Jains were known to Ameer and so also to one Quattrochy, that S. K. Jain was to be paid 18 to 19 million U.S. Dollars as share of the “kickback” received by Quattrochy in connection with a contract and that the said amount was transferred by Quattrochy in the bank account of Ameer for being delivered to S. K. Jain. It was the amount so received which was allegedly distributed by the Jains to different persons as noticed above. How was Ameer transferring the money to the Jains ? This came to be answered during the investigation of RC No. 5(S)/91-SIU-V/SIC-II CBI. It was revealed that petitioner No. 2, Arif had been sending money through different persons in Delhi. The prosecution alleges that the total payment involving the petitioners was to the tune of 2,26,50,000 US Dollars or about Rs. 48 crores in Indian currency. Since the petitioners appeared to have violated the provisions of the FERA, 1973 also, the two complaints referred to above were filed in Delhi. Whereas, in the first complaint which is against both the petitioners it is alleged that they were jointly and severally involved in the Hawala transaction to the tune of 2,26,50,000 US Dollars, in the second which is against Ameer and S. K. Jain, it is alleged that S. K. Jain without the previous permission of the Reserve Bank of India acquired foreign exchange of the value of Rs. 5 crores and passed over the same to Ameer. Admittedly in the first complaint non-bailable warrants have been issued against both the petitioners. In the second complaint the court has issued non-bailable warrants against Ameer. And, as far as the case registered by the C.B.I. bearing No. RC1(A)-95-ACU-(VI) dated 4-3-95 is concerned, in that case too non-bailable warrants stand issued against Ameer. This, however, is not the end of the matter. It may be recalled that there is a complaint pending before Mumbai Court also. It relates to the alleged non-compliance of summons issued under S. 40 of the FERA, 1973. It appears that the court concerned has issued non-bailable warrants against both the petitioners and so also a proclamation declaring both the petitioners as absconders.

5. Having provided above the bare essentials of the cases pending before the petitioners. I feel something needs to be said about their whereabouts also. It appears that the petitioners who are closely related to each other and are permanent residents of Mumbai, left the shores of India while the investigation was still in progress and since then have not come back. As far as petitioner No. 1 is concerned he was found to be, at one stage, in Hong Kong. His passport was cancelled by the Commissioner of India Hong Kong and was arrested in response to the non-bailable warrants of arrest issued against him by the Special Judge, Delhi in the Hawala case registered by the C.B.I. However, the move to get him extradited to India failed and though the Government of India agreed to issue an emergency certificate for enabling him to return to India and to appear before the CBI and so also the Enforcement Directorate, Ameer had other plans. He went to Dubai and I was informed by the learned counsel for the C.B.I. that the Indian Government’s request for extradition of the petitioners from Dubai is under active consideration of the authorities there.

6. The petitioners want me to grant them anticipatory bail. As per Mr. Ashok Arora, the learned counsel for the petitioners, since the “Hawala case” has ended in what he called a “fiasco” with practically all the accused discharged and as the Jain diaries, the bed-rock of the Hawala case, have been held to be of no evidentiary value, the cases against the petitioners too would meet the same fate as they too are based on the said diaries. It was also argued that as according to the Hawala case the real culprits were the bureaucrats and politicians who had allegedly enriched their coffers through the conspiratorial hands of the Jains and as all of them had been released on anticipatory or regular bail orders, there was absolutely no legal justification to deny similar relief to the petitioners and in support my attention was drawn to the order granting anticipatory bail to L. K. Advani one of the many accused persons in the Hawala case. It was further argued by Mr. Arora that the petitioners had gone abroad in pursuit of their legitimate business interests and had always shown their willingness to extend all possible assistance to the Investigators. He drew my attention to the judgment of the Apex Court in K. L. Verma v. State, (S.L.P. (Crl.) Nos. 3278 and 3278A of 1996) and submitted that in case of the petitioners too an order for anticipatory bail could be passed on similar terms. Mr. Arora felt that the Union of India and the C.B.I. who had not opposed the anticipatory bail applications of L. K. Advani and others in Hawala case were adopting with regard to the petitioners an attitude which was, according to him, arbitrary, unfair, oppressive and unreasonable.

7. It is neither feasible nor, perhaps, even desirable to lay down cast iron rules in a matter like granting anticipatory bail. Even the Supreme Court in Gurbaksh Singh v. State of Punjab, refused to undertake such an exercise. However, the Apex Court has, from time to time, furnished broad guidelines while, at the same time, making it clear that in which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion and that while exercising that discretion the Court has to be guided by a large number of considerations including those mentioned in section 437 of the Code of Criminal Procedure.

8. Though Mr. Arora invited me to go deep into the allegations made in the complaints in question and so also into the intricacies of the Hawala case, I think I need to steer clear from the molasses for it is no forum to go deep into the issues involved or to examine in depth either the allegations made or the evidence collected or not collected and its legal efficacy. That would be within the province of the trial court.

9. Though Mr. Arora drew my attention to the order granting anticipatory bail to L. K. Advani in the Hawala case (See : L. K. Advani v. State (C.B.I.) 1996(1) AD 907) I do not think the order of which, incidentally, I happened to be the author, can act as a binding precedent for the simple reason that a circumstance which in a given case turns out to be conclusive may have no more than ordinary signification in another case. L. K. Advani had neither left the shores of the country nor had made himself scarce to the Investigating agencies. In his case there was also no apprehension of abscondence. But then, look at the petitioners. They have neither obeyed the call of the summons issued nor the command of the non-bailable warrants. Ameer successfully thwarted the attempts to extradite him from Hong Kong. Both of them are now ensconced comfortably in Dubai while the Investigating Agencies in India are breathlessly engaged in the exercise of getting them back. No. L. K. Advani provides no precedent.

10. The allegations against the petitioners to say the least, are serious. The facts do not merely show the commission of economic offences, they reveal a sordid tale of political and bureaucratic corruption too. If what is alleged is correct, it is not the State but the petitioners, who are perverting the processes of criminal law. True, anticipatory bail is a device to secure the individual’s liberty. But then, it is neither a passport to mock at the law nor at its processes. Where is the guarantee that the petitioners would not abscond again, or would not otherwise misuse their liberty ?

11. Mr. Arora said that the petitioners had the right to travel abroad and flaunted Maneka Gandhi v. Union of India, . Let us assume the petitioners went abroad for legitimate reasons. But then can their stay there now be said to have any legal legitimacy ?

12. We cannot ignore the larger interests of the public or the State. We also cannot ignore the accusations and their seriousness and so also the conduct of the petitioners which leads to a reasonable fear that they may abscond again.

13. The petition is dismissed.

14. Petition dismissed.