Full Judgment Text
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PETITIONER:
DIRECTORATE OF ENFORCEMENT SHRI ASHOK KUMAR JAIN
Vs.
RESPONDENT:
ASHOK KUMAR JAIN DIRECTORATE OF ENFORCEMENT
DATE OF JUDGMENT: 08/01/1998
BENCH:
M.K. MUKHERJEE, S.P. KURDUKAR, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
WITH
CRIMINAL APPEAL NO 23 OF 1998
[Arising out of SLP (Crl.) No. 3563 of 1997]
J U D G M E N T
Thomas, J.
Special leave granted.
These two appeals are directed against an order passed
by the Delhi High Court which interfered with the order
passed by a Sessions Judge dismissing a petition filed by
one businessman called Ashok Kumar Jain (who will be
referred to as the respondent) for pre-arrest bail.
Some officials of the Enforcement Directorate under the
Foreign Exchange Regulation Act, 1973 (‘FERA’ for short)
conducted a seized certain documents which they considered
very useful for unearthing instances of large scale FERA
violations. The said raid was followed by a few other raids
and the Enforcement Directorate (for convenience it is
referred to as "the Directorate") has now started
investigation into the alleged FERA violations against the
respondent involving millions of US Dollars. Summons were
issued to the respondent to appear before the Directorate
for interrogation. On 5-1-1997 respondent left India. Though
summons were repeated many times respondent did not
reciprocate to any one of them and instead he moved the
Section Court of Delhi for anticipatory bail. In the
application (for anticipatory bail) he highlighted his
deteriorating health condition as the main ground for
granting him bail. However, the Sessions Court dismissed the
application and in so doing learned Sessions Judge made the
following observations:
"Anticipatory bail definitely
hamper the proper and effective
investigation. Therefore, extra
care and caution has to be taken
while dealing with the larger
interest of the public and the
State. For instance, in the instant
case, there are allegations of
clandestine siphoning of big amount
of precious foreign exchange. Such
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an offence is against the whole
nation. The investigators have to
be given full freedom for
investigation. The allegations
against the petitioner being of
very grave and serious nature, the
grant of anticipatory bail to this
accused will certainly hamper
proper investigation. The need for
providing medical care and
attention to the petitioner, in
view of his past medical history,
will be taken care of by the
department even by the jail
authorities in the event of his
arrest. Such assurances have been
given by the department."
Respondent moved Delhi High Court challenging the
aforementioned order. He made a strong plea for a pre-arrest
bail order on the strength of medical reports obtained from
his cardiologists. Learned single judge, though expressed
his view in the order under challenge that the Directorate
can arrest the respondent and carry out custodial
interrogation, has passed a condition that such arrest shall
be "subject to the opinion of the cardiologists of the All
India Institute of Medical Sciences (AIIMS)".
Learned single judge further observed that in case the
Directorate considers custodial interrogation of the
respondent necessary "it should approach the Director, AIIMS
to constitute a Board of cardiologists to examine the
respondent", and if the said Board reaches the opinion that
custodial interrogation is not feasible "in that event it
will be open to the officials to interrogate him under that
care of the doctors at the AIIMS." Studded with such
conditions learned single judge modified the order of the
Sessions Court. The Directorate has filed this appeal
aggrieved by such conditions, and the respondent filed the
other appeal aggrieved by the refusal to grant anticipatory
bail.
This is not a fit case for granting anticipatory bail
to the respondent and the Sessions Court as well as the High
Court have rightly declined to grant such pre-arrest bail
order tot he respondent. Hence we proceed to consider
whether learned single judge of the High Court has gone
wrong in imposing conditions on the Directorate regarding to
manner in which interrogation of the respondent is to be
modulated.
It is contended by Shri K.N.Bhat, learned Addl.
Solicitor General, appearing for the Directorate, that the
aforesaid conditions imposed by the High Court would render
the interrogation ineffective and unfruitful. Shri Kapil
Sibal and Shri Arun Jaitley, Senior Advocates (who argued
for the respondent, separately under the two appeals) laid
emphasis on the health aspect of the respondent who, it is
said, is suffering from acute heart conditions. Papers
prepared by cardiologists of the AIIMS have been produced to
show that respondent has undergone a bypass surgery and
other curative processes for eschemic heart disease.
We have noticed that learned Sessions Judge while
dismissing the application for pre-arrest bail has taken
due note of the aforesaid plea of the respondent and made
necessary observations regarding the need to provide medical
care and protection to the respondent in view of the medical
reports. It cannot be contended, nor has it been contended
before us, that respondent is immune from arrest on even
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interrogation simply on account of his physical conditions.
No doubt investigating officials of the Directorate are duty
bound to bear in mind that the respondent has put forth a
case of delicate health conditions. They cannot overlook it
and they have to safeguard his health while he is in their
custody. But to say that interrogation should be subject to
the opinion of the cardiologists of the AIIMS and that the
officials of the Directorate should approach the Director of
AIIMS to constitute a Board of cardiologists to examine the
respondent etc. would, in our opinion, considerably impair
the efficient functioning of the investigating authorities
under FERA. The authorities should have been given freedom
to chalk out such measure as are necessary to protect the
health of the person who would be subjected to interrogatory
process. They cannot be nailed to fixed modalities
stipulated by the court of conducting interrogations. It is
not unusual that persons involving themselves in economic
offences, particularly those living in affluent
circumstances, are afflicted by conditions of cardiac
instability. So the authorities dealing with such persons
must adopt adequate measures to prevent deterioration of
their health during the period of custodial internment.
Court would interfere when such authorities fail to adopt
necessary measures. But we are not in favour of stipulating
in advance modalities to be followed by the authorities for
that purpose. According to us such anticipatory stipulations
are interferences with the efficient exercise of statutory
functions when dealing with economic offences. Hence learned
single judge ought not have imposed such conditions on the
Directorate.
Learned Addl. Solicitor General invited our attention
to Section 41 of the FERA which provides that the document
seized can be retained only for a period for a further
period which shall not exceed six months. It is submitted
that the Directorate has already extended the period of six
months and even that extended period would expire on 4-1-
1998. According to the learned Addl. Solicitor General
interrogation of the respondent would become completely
futile if the Directorate is disable to use the seized
documents for questioning the persons concerned because
respondent is not availing himself for effective
interrogations during the said statutorily limited time
schedule in spite of extension of the period permitted by
FERA.
It was submitted by both the senior counsel appearing
for the respondent that respondent would not ask for return
of the seized documents on the expiry of the said time
schedule. But such a concession from the respondent may not
help the Directorate because of the statutory limitation
contained in Section 41 of FERA. Since the period fixed for
return of the seized documents would have expired for no
lapse on the part of the officials of the Directorate, we
are of the considered opinion that public interest should
not suffer by non utilization of the seized documents for
interrogating the respondent. We therefore extend the said
period for a further period of six months commencing from
4-1-1998. We make it clear that the Directorates shall abide
b y this extended time and no further extension shall be
made by them except with the leave of this Court.
Subject to the aforesaid to the aforesaid observations
we allow the appeal filed by the Directorate and dismiss the
appeal filed by the respondent. We set aside the order of
the learned single judge of the High Court and restore the
order passed by the learned Sessions Judge.
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