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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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