Mool Chand Vs. the State Through the Director, C.B.i. - Court Judgment

Excerpt:
- section 100: [r.v.raveendran & markanedy katju,jj] second appeal by tenant/government corporation against order passed against it for alleged disobedience of interim direction to deposit rent in court - summary disposal by high court on assumption that appellant was trying to challenge only order of interim direction in appeal against its alleged disobedience - high court did not even bother to refer to facts and merits - high court did not also ensure that its process were not misused and abused by respondent held, order of high court is liable to be set aside. order 39, rules 1, 2 & 2a: [r.v. raveendran & markandey katju, jj] order of injunction - suit by creditor against landlord/borrowers held, a direction to pay money either by way of final or interim order is not considered to be an injunction. in the instant case the landlord/borrower obtained loan from bank for purpose of constructing godowns for food corporation of india, tenant. on default by landlord the bank filed a suit for recovery of loan with interest. the bank filed application for direction to tenant to deposit arrears of rent and to continue to deposit rents in court and in default to play interest. said application would not fall under rule1 of order 39 as the prayer therein did not related to any of the three matters mentioned in clauses (a), (b) and (c) of the said rule. it did not also fall under rule 2 of order 39 as admittedly there was no contract between the bank and fci (tenant) nor any allegation that fci was committing any injury of any kind to the bank. therefore, the order passed on said application was not an order under either rule 1 or rule 2 of order 30. the suit itself was for recovery of the amounts due by the borrowers, by sale of the mortgaged properties belonging to the borrowers and to recover the balance personally from the borrowers and guarantors. when fci was subsequently added as seventh defendant at the instance of defendants 1 to 3, no relief was sought against fci nor was the prayers amended seeking any decree against fci. if there was no prayer in the suit against fci, obviously no interim relief could have been sought against fci as a defendant. even was only a garnishee defendant and not a principal defendant. thus, the interim order was not an injunction order, but an interim prohibitory (garnishee) order by way of attachment before judgment, in regard to the rents payable for one godown taken by it on lease. further when the application itself was only in regard to the rent for one godown from june, 1994 onwards, the said interim order could not be said to have directed fci to deposit the rent for three godowns for the period december, 1983 to 31.3.1996 and that failure to do so was punishable under order 39 rule 2a. order 39, rule 2a: [r.v. raveendran & markandey katju, jj] disobedience of injunction order - suit for recovery of loan by bank against landlord/borrower-application by bank for direction to tenant to deposit arrears of rent and to continue to deposit rent - interim direction to deposit rent given by court alleged disobedience of said order by tenant - application against under order 39 rule 2a by landlord/borrower held, application is not maintainable as said interim order was not intended for the benefit to defendant landlord/borrower and he could not be said to be person aggrieved by alleged disobedience, or breach of said order. order 39 rule 2a & order 21 rule 46b & order 38 rule 11a: [r.v.raveendran & markandey katju,jj] applicability failure of garnishee/defendant to pay the sum of money as directed by court - held, remedy is to levy execution and not an action for contempt or disobedience/breach under order 39 rule 2a. it is evident from rule 46b of order 21 read with rule 11a of order 38 of c.p.c., food corporation of india v sukh deo prasad. [c.a.no.380/2007, dd 24.3.2009]. order 39 rule 2a: [r.v.raveendran & markandey katju,jj] disobedience of injunction - powers of court order in regard to which disobedience/breach was alleged (order directing the tenant to deposit rent held, court cannot construe said order as creating obligation to do something which is not mentioned in the order, on surmises, suspicions and inferences. power under order 39 rule 2a should be exercised with great caution and responsibility. entertaining application under order 39 rule 2a from person who was not entitled to file application and accepting interpretation of said order which does not flow from order, and creating liability where none existed, resulting in attachments of assets of government corporation is not proper. - according to him, the arrest and detention of the petitioner as well the non-disclosure of the full particulars of the offence or the grounds for his arrest are in violation of article 22 of the constitution of india and section 50(1) of the crpc and that this non-disclosure of the particulars has deprived him of meeting this case effectively.orders. ratnavel pandian, j1. this special leave petition is directed against the order of the designated court, delhi dated 3.6.91 rejecting the application for regular bail to mool chand shah, the petitioner herein and in the alternative releasing him on interim bail.2. the petitioner is an accused in fir no. 53 of 1991 of chandni mahal police station, delhi registered under sections 3 and 4 of the terrorist and disruptive activities (prevention) act, 1987 (tada) and under section 8(1) of the foreign exchange regulations act (fera). the prosecution is as follows.3. the petitioner is an unauthorised dealer illegally dealing in foreign exchange-commonly known as hawala transaction and he has been instrumental in transferring huge sums received from different sources to the members of militant outfits of jammu and kashmir for use in terrorist and disruptive activities. it is stated that on receipt of a secret information, a trap was laid by delhi police on 25.3.1991 resulting in the apprehension of accused ashfaq hussain lone from whom three incriminating letters, one addressed to master ahsan dar, commander- in-chief of hizbul mujaheedin, a banned terrorist organisation of kashmir valley and another addressed to one mashud containing information about making arrangements for a house in srinagar and for recruiting people in the valley and the third one addressed to firdaus containing secessionist messages, formation of militant groups etc. were seized. at the time of the apprehension, accused ashfaq hussain lone shouted slogans, 'pakistan zindabad', 'azad kashmir zindabad' etc. the case fir no. 53 of 1991, referred to above, was registered only after his arrest on 25.3.1991. in pursuance of his statement, 23 drafts for a sum of rs. 15.50 lakhs and a sum of rs. 50,000/- in cash were also recovered which amounts are stated to have been given to accused ashfaq hussain lone by accused shahbuddin ghauri, a research student of jnu who in turn stated to have received the same from dr. ayub thakur of u.k. through illegal means of hawala transaction. accused shahbuddin ghauri was also arrested by delhi police on 27.3.1991 and on his pointing out, another accused shambhu dayal sharma @ guptaji who is stated to have delivered the sum of rs. 16.27 lakhs, was also arrested on 1.4.1991. on the disclosure of accused shambhu dayal sharma to the effect! that the petitioner, mool chand shah was the person through whom he started transactions at delhi and passed on the money to different people including to accused shahbuddin ghauri which were recovered from ashfaq hussain lone while being taken to kashmir for terrorist activities, delhi police sent a requisition to bombay on 13.4.1991 for apprehending petitioner/accused mool chand shah who was accordingly arrested at bombay on 16.4.1991 and was brought to delhi on 23.4.1991 on a production warrant issued by the court. the petitioner was kept in police custody on court's order upto 10.5.1991 for interrogation and thereafter was sent to judicial custody upto 29.6.1991. (it is now stated at the bar that the remand of the petitioner is further extended.) the investigation of this case was taken over by the cbi on 20.4.1991. the cbi conducted simultaneous searches at 20 places including the places of sub-bankers of hawala from where the accused persons used to collect the money for making payments to different persons and also at the places where the final deliveries were made. according to the prosecution, a huge amount of rs. 93,52,755/- in cash and foreign exchange worth rs. 3,69,307/-, indira vikas patra worth rs. 10,50,000/- and gold bars worth rs. 12 lakhs were recovered and the investigation, connecting the terrorist links of the places from where the money had been kept/delivered by the accused persons in this case is continuing not only in india but also in abroad and that the investigation is likely to take sufficient time to unearth the whole conspiracy behind the said heinous crime of funding terrorists for illegal terrorist and secessionist activities.4. mr. jethmalani, learned senior counsel appearing on behalf of the petitioner strenuously contended that there is absolutely no evidence worth mentioning disclosing the involvement of the petitioner in funding of terrorist activities and that the investigating agencies have not disclosed the precise allegations and particulars either in the first information report or in the remand report connecting the petitioner with the offence in question and that even assuming but not conceding that the petitioner had been dealing with money transaction with any one of the accused that would not be a sufficient ground to hold that the petitioner in any way had any connection with the terrorist activities even remotely or had knowledge of the alleged terrorist activities of the other accused. in continuation of his submission, it has been stated that the petitioner had not made any confession to the police officer within the ambit of section 15 of the tada act from which presumption as to offence under section 3 could be drawn as contemplated under section 21, sub-section l(c) of the tada act. according to him, the arrest and detention of the petitioner as well the non-disclosure of the full particulars of the offence or the grounds for his arrest are in violation of article 22 of the constitution of india and section 50(1) of the cr pc and that this non-disclosure of the particulars has deprived him of meeting this case effectively. in support of his contention, the learned counsel places reliance on two decisions, namely bimal kaur khalsa v. union of india and ors. 1988 cri lj 869 and selvanathan alias raghavan v. state by inspector of police 1988 lw(cri) 503 to which i was a party. finally, he drew the attention of this court to paragraph 6 of the impugned order wherein the designated court has made the following observations:there is considerable substance in the defence plea that unless it is shown that the applicant/accused knew the identity of persons being terrorist or disruptionists, mere transfer of funds by way of hawala transaction cannot being his case under section 3(3) of tada act, 1987, as such transaction cannot be treated as amounting to rendering of assistance, financially or otherwise, to terrorist disruptionist.' and contended that in the face of the above observation, the petitioner is entitled for bail and more so when it is the admitted case of the prosecution that the petitioner was traced on the disclosure of accused shambhu dayal sharma who was traced on being pointed out by shahbuddin ghauri who was traced on the strength of the statements of ashf(1992) 1 aq hussain lone.5. the learned additional solicitor general refuted the arguments of mr. jethmalani stating that shambhu dayal sharma who had delivered a sum of rs. 16.27 lakhs to shahbuddin ghauri was arrested on 1.4.91 and that on the strength of the statement of disclosure made by shambhu dayal sharma to the effect that the petitioner was the person through whom he started transaction at delhi and passed on the money to different people including to accused shahbuddin ghauri which amounts were recovered from ashfaq hussain lone while being taken to kashmir for terrorist activities and that the offence has got an international ramification and that some more time would be required for completing the investigation and as such the release of the petitioner on bail will be hindrance to the further investigation which has to be intensively carried on not only in india but also abroad. according to him, there is a deep rooted conspiracy of terrorist activities and the petitioner is very much involved in it.6. i bestowed my deep and anxious consideration to the submissions made by both the parties. as the matter is under investigation, i am not inclined to express any opinion on the merits or demerits of the case. suffice to say that the investigation has to go a long way and hence sufficient time will be required for the investigating agencies to complete to investigations. further, having regard to the seriousness of the allegations levelled against the petitioner, as pointed out by the designated court, the release of the petitioner on bail at this crucial stage may frustrate the effort of the investigating agencies in collecting evidence. hence his bail application is dismissed at this stage. however, the investigating agencies are directed to expedite and complete the investigation as expeditiously as possible. the petitioner is permitted to renew the application for bail after two months.7. the special leave petition is dismissed accordingly.

Judgment:
ORDER

S. Ratnavel Pandian, J

1. This Special Leave Petition is directed against the Order of the Designated Court, Delhi dated 3.6.91 rejecting the application for regular bail to Mool Chand Shah, the petitioner herein and in the alternative releasing him on interim bail.

2. The petitioner is an accused in FIR No. 53 of 1991 of Chandni Mahal Police Station, Delhi registered under Sections 3 and 4 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA) and under Section 8(1) of the Foreign Exchange Regulations Act (FERA). The prosecution is as follows.

3. The petitioner is an unauthorised dealer illegally dealing in foreign exchange-commonly known as Hawala transaction and he has been instrumental in transferring huge sums received from different sources to the members of militant outfits of Jammu and Kashmir for use in terrorist and disruptive activities. It is stated that on receipt of a secret information, a trap was laid by Delhi police on 25.3.1991 resulting in the apprehension of accused Ashfaq Hussain Lone from whom three incriminating letters, one addressed to Master Ahsan Dar, Commander- in-Chief of Hizbul Mujaheedin, a banned Terrorist Organisation of Kashmir Valley and another addressed to one Mashud containing information about making arrangements for a house in Srinagar and for recruiting people in the valley and the third one addressed to Firdaus containing secessionist messages, formation of militant groups etc. were seized. At the time of the apprehension, accused Ashfaq Hussain Lone shouted slogans, 'Pakistan Zindabad', 'Azad Kashmir Zindabad' etc. the case FIR No. 53 of 1991, referred to above, was registered only after his arrest on 25.3.1991. In pursuance of his statement, 23 drafts for a sum of Rs. 15.50 lakhs and a sum of Rs. 50,000/- in cash were also recovered which amounts are stated to have been given to accused Ashfaq Hussain Lone by accused Shahbuddin Ghauri, a research student of JNU who in turn stated to have received the same from Dr. Ayub Thakur of U.K. through illegal means of Hawala Transaction. Accused Shahbuddin Ghauri was also arrested by Delhi Police on 27.3.1991 and on his pointing out, another accused Shambhu Dayal Sharma @ Guptaji who is stated to have delivered the sum of Rs. 16.27 lakhs, was also arrested on 1.4.1991. On the disclosure of accused Shambhu Dayal Sharma to the effect! that the petitioner, Mool Chand Shah was the person through whom he started transactions at Delhi and passed on the money to different people including to accused Shahbuddin Ghauri which were recovered from Ashfaq Hussain Lone while being taken to Kashmir for terrorist activities, Delhi Police sent a requisition to Bombay on 13.4.1991 for apprehending petitioner/accused Mool Chand Shah who was accordingly arrested at Bombay on 16.4.1991 and was brought to Delhi on 23.4.1991 on a production warrant issued by the Court. The petitioner was kept in police custody on Court's order upto 10.5.1991 for interrogation and thereafter was sent to judicial custody upto 29.6.1991. (It is now stated at the bar that the remand of the petitioner is further extended.) The investigation of this case was taken over by the CBI on 20.4.1991. The CBI conducted simultaneous searches at 20 places including the places of sub-bankers of Hawala from where the accused persons used to collect the money for making payments to different persons and also at the places where the final deliveries were made. According to the prosecution, a huge amount of Rs. 93,52,755/- in cash and foreign exchange worth Rs. 3,69,307/-, Indira Vikas Patra worth Rs. 10,50,000/- and gold bars worth Rs. 12 lakhs were recovered and the investigation, connecting the terrorist links of the places from where the money had been kept/delivered by the accused persons in this case is continuing not only in India but also in abroad and that the investigation is likely to take sufficient time to unearth the whole conspiracy behind the said heinous crime of funding terrorists for illegal terrorist and secessionist activities.

4. Mr. Jethmalani, learned senior counsel appearing on behalf of the petitioner strenuously contended that there is absolutely no evidence worth mentioning disclosing the involvement of the petitioner in funding of terrorist activities and that the investigating agencies have not disclosed the precise allegations and particulars either in the First Information Report or in the Remand Report connecting the petitioner with the offence in question and that even assuming but not conceding that the petitioner had been dealing with money transaction with any one of the accused that would not be a sufficient ground to hold that the petitioner in any way had any connection with the terrorist activities even remotely or had knowledge of the alleged terrorist activities of the other accused. In Continuation of his submission, it has been stated that the petitioner had not made any confession to the police officer within the ambit of Section 15 of the TADA Act from which presumption as to offence under Section 3 could be drawn as contemplated under Section 21, Sub-section l(c) of the TADA Act. According to him, the arrest and detention of the petitioner as well the non-disclosure of the full particulars of the offence or the grounds for his arrest are in violation of Article 22 of the Constitution of India and Section 50(1) of the Cr PC and that this non-disclosure of the particulars has deprived him of meeting this case effectively. In support of his contention, the learned Counsel places reliance on two decisions, namely Bimal Kaur Khalsa v. Union of India and Ors. 1988 Cri LJ 869 and Selvanathan alias Raghavan v. State by Inspector of Police 1988 LW(Cri) 503 to which I was a party. Finally, he drew the attention of this Court to paragraph 6 of the impugned order wherein the Designated Court has made the following observations:

There is considerable substance in the defence plea that unless it is shown that the applicant/accused knew the identity of persons being terrorist or disruptionists, mere transfer of funds by way of hawala transaction cannot being his case Under Section 3(3) of TADA Act, 1987, as such transaction cannot be treated as amounting to rendering of assistance, financially or otherwise, to terrorist disruptionist.' and contended that in the face of the above observation, the petitioner is entitled for bail and more so when it is the admitted case of the prosecution that the petitioner was traced on the disclosure of accused Shambhu Dayal Sharma who was traced on being pointed out by Shahbuddin Ghauri who was traced on the strength of the statements of Ashf(1992) 1 aq Hussain Lone.

5. The learned Additional Solicitor General refuted the arguments of Mr. Jethmalani stating that Shambhu Dayal Sharma who had delivered a sum of Rs. 16.27 lakhs to Shahbuddin Ghauri was arrested on 1.4.91 and that on the strength of the statement of disclosure made by Shambhu Dayal Sharma to the effect that the petitioner was the person through whom he started transaction at Delhi and passed on the money to different people including to accused Shahbuddin Ghauri which amounts were recovered from Ashfaq Hussain Lone while being taken to Kashmir for terrorist activities and that the offence has got an international ramification and that some more time would be required for completing the investigation and as such the release of the petitioner on bail will be hindrance to the further investigation which has to be intensively carried on not only in India but also abroad. According to him, there is a deep rooted conspiracy of terrorist activities and the petitioner is very much involved in it.

6. I bestowed my deep and anxious consideration to the submissions made by both the parties. As the matter is under investigation, I am not inclined to express any opinion on the merits or demerits of the case. Suffice to say that the investigation has to go a long way and hence sufficient time will be required for the investigating agencies to complete to investigations. Further, having regard to the seriousness Of the allegations levelled against the petitioner, as pointed out by the Designated Court, the release of the petitioner on bail at this crucial stage may frustrate the effort of the investigating agencies in collecting evidence. Hence his bail application is dismissed at this stage. However, the investigating agencies are directed to expedite and complete the investigation as expeditiously as possible. The petitioner is permitted to renew the application for bail after two months.

7. The Special Leave Petition is dismissed accordingly.