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TMI Blog1992 (7) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... as the scam of the century. Since that time he is in custody and the custody has been continued from time to time. The last occasion when the petitioner was produced before the Special Court was on 17-7-1992 and the Judge presiding over the said Court is said to have given an indication that the petitioner's detention could not be continued indefinitely ,for indefinite detention would amount to punishment even before the offences allegedly committed by the petitioner had been established. Petitioner has three brothers names Ashwin, Sudhir and Hitesh. The Financial Express, an organ of the Express Group of Newspapers, on July 2, 1992 came out with a write-up captioned "Dragging feet over probe on scam funds flight". Shortly stated, the write-up accused the Directorate of Enforcement of deliberately delaying investigation into FERA violations committed by the petitioner. The write up referred to certain statements made by Niranjan Shah. In that statement, certain names were mentioned and two of these were of "Bhai" and "Bindu". That night Ashwin, Hitesh and Sudhir, the brothers of the petitioner, were rounded up and interrogated. The next day, an Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... July 1992 they had been so interrogated. But there was no interrogation from 3rd till 14th July 1992. 3. It is not clear whether the petitioner while in custody has been questioned or not in regard to violations under FERA. However, certain extracts from the proceedings pending against him before the Special Court have been available. These give the indication that some questioning of the petitioner vis-a-vis the FERA violations has taken place. The remand application moved on 3-7-1992 speaks of the investigation having made progress in tracking foreign accounts of the petitioner and his relations. There is also a reference to the identification of petitioner's associates and accomplices abroad. In the order passed by the Special Court on 3-7-1992 there is a reference to the investigation unearthing the possibility of the existence of foreign accounts. It is said that the continued interrogation and investigation has led to traces of foreign accounts. 4. The application under consideration speaks of petitioner and his family being in the lime-light since the last week of April 1992. It is said that all the Government agencies such as the RBI, the CBI and the Income Tax Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India which is the first respondent to this case represented through counsel appearing for the CBI as also the Enforcement Directorate disputes the charge of bad faith levelled against them by the petitioner. It was not true to say that the Enforcement Directorate had been goaded into action consequence to insinuations made in the article of the Financial Express, a copy of which article is at Ex. A. The petitioner was in CBI custody in relation to offences referred to in what is known as the "Jankiraman report". The report is so named after the Deputy Governor of the RBI who was commissioned by the RBI to look into the financial bungling referred to as the 'great scam'. The Jankiraman report was the basis for the CBI to take action to arrest and interrogate the petitioner. During the period the petitioner was in custody at the instance of the CBI, the Enforcement Directorate could not question him for the FERA violations. This was because though the FERA gave the power to interrogate a suspect and record statements of such suspect, the same would not be of any use being hit by sections 25 and 26 of the Indian Evidence Act, 1872. The CBI may have touched u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they come before them, mindful of the need to keep passions and prejudices out of their decisions." Therefore the first caution which I address myself to is the need to eschew the passion and prejudices generated by a media out for a salacious copy. Every case has to be decided on its own merits and everyone who comes before a Court of law in the capacity of a suspect is entitled to his rights. This requires looking over a case straight in the face. What is the case against the petitioner ? He is supposed to have committed offences punishable under Section 8, 9 and 14 read with 56 of the FERA. These offences are non-cognizable vide Section 62. Section 61(2)(ii) disables a Court from taking cognizance of an offence punishable under S. 56 except upon a complaint in writing made by various authorities including the Director of Enforcement. That the FERA requires offences punishable under the enactment to be investigated and prosecuted by its own set of officers or personnel is evident from many other sections of the enactment. Section 35 empowers an Officer of the Enforcement Directorate to arrest a person where he has reason to believe that any person in India or within the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments which were forgeries for the purposes of commission of a fraud vis-a-vis foreign exchange. After this on receipt of information from the Enforcement Directorate at the CBI wanted to take over the petitioners for further interrogation vis-a-vis the offences outside the FERA. The petitioners naturally protested and the protest appears to have been affirmed by the learned Judge who said :- "Now, what is of interest is that it is not as if that the alleged offences under the Indian Penal Code came to be enveloped in the entire transaction of which the Enforcement Officers could not have been awarded. But on the contrary, the very first remand application in the month of July or August 1984 vis-a-vis the allegations under the FERA makes it clear the existence of the offences under the Indian Penal Code. In fact, the allegations levelled against the petitioners and even the investigation directed by the Enforcement Officers, made the existence of the offences under the Indian Penal Code transparent. In fact, documents having been forged and a conspiratorial agreement are the foundation of the entire allegations and further it does appear that both the offences under both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at would justify the request for anticipatory bail. From the leads obtained by the search of Niranjan Shah's premises and the questioning of Bindu and Panchal, it cannot be said that the Enforcement Directorate has no reason to subject the petitioner to any questioning. In fact, Mr. Desai very frankly concedes that his client cannot object to the Enforcement Directorate wanting to subject the petitioner to an interrogation. Learned Counsel's objection is to the Enforcement Directorate seeking and obtaining the privilege of interrogation while keeping the petitioner in custody. In other words, custodial interrogation is what the Counsel objects to. Now, custodial interrogation however reprehensible it may sound in practice is something which every investigating agency has to take recourse to. Custodial interrogation may suffer from a number of vices and the matter cannot be better put than in the words of Mr. Justice Black in Groban's case (1957) 352 US 330 : 1 L Ed 376, Says the learned Judge - "Secret inquisitions are dangerous things justly feared by free man everywhere. They are the breeding place for arbitrary misuse of official power. They are often the begi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no justification to require him first to submit to custody, remain in prison for some days and then apply for bail." The second part of the observation supports learned Counsel's submission. The offences ascribed to petitioner are not punishable with life imprisonment and it is not seriously contended that he is likely to tamper with the evidence or abscond. That there is a possibility of his tampering or absconding is of course there as it is in all cases irrespective of the person who is in the dock. But we have to go by normal presumptions and having regard to the commitments of the petitioner in India it does not appear likely that he will abscond. The chances of his tampering with the witnesses also are not very strong. Nonetheless, the public interest lies in giving the Enforcement Directorate a full and proper opportunity to question the petitioner vis-a-vis the leads that it has obtained. These leads consist in print-outs obtained from a search of Niranjan Shah's premises. Bindu and Panchal have been questioned. The latter is an employee of Niranjan Shah and what he is supposed to have said is indicative of the petitioner being involved in violations of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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