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Himachal Pradesh High Court · body

2011 DIGILAW 872 (HP)

Kul Parkash Bhardwaj v. State of H. P.

2011-03-03

DEV DARSHAN SUD

body2011
JUDGMENT Dev Darshan Sud, J. The petitioner has been arrested for offences under Sections 419, 420, 467, 468, 471, 120-B and 489-A IPC. The petitioner-applicant states that he is a permanent resident of Dharamshala, District Kangra and prior to the present application, petition was filed before the learned Additional Sessions Judge, Fast Track Court, Una on 17.2.2011 and another application prior to that before the learned Chief Judicial Magistrate, Una. Both applications were dismissed. Before the learned Chief Judicial Magistrate, a prayer was made for the remand of the petitioner to police custody alongwith other accused except accused Davinder Kumar Dhar for whom a prayer was made that he be kept in judicial custody. The bail application of this petitioner was rejected and the prayer of the police that he be kept in police custody was also declined and he was ordered to be detained in judicial custody. Thereafter, the petitioner approached the learned Additional Sessions Judge, who rejected the prayer of the petitioner alongwith other co-accused. 2. The allegations in a nutshell are that on 26.1.2011 around 3.35 P.M. one Scorpio bearing No.HP-36-0444, which was coming from Nangal towards Una was stopped for checking by the police who were on routine duty. The driver disclosed his name as Sanyog Dutt son of Ravinder Nath, Resident of Village Pathiar, District Kangra and the second person as Ashutosh Sharma son of Ravinder Nath, Resident of the same village. They informed the police that they are employees of “Divya Himachal Newspaper”. The vehicle was bearing two stickers with the words “Press” which were affixed on the front and the rear wind screen. The police became suspicious and searched the vehicle, when one certificate/document bearing No.OR/DKD/AMB/14/2011, dated 20.1.2011 issued by the Corporation Bank, Ambala City Branch and signed by the petitioner was produced by the two occupants. This certificate stated that a sum of Rs.one crore has been sent by the petitioner to be remitted to his savings account was being transported in vehicle No.HR-03H-6194. The police found Rs.one crore in cash in a bag out of which Rs.80 lacs (Rs.eighty lacs) were in One Thousand Rupee notes and Rs.20 lacs (Rs.twenty lacs) in Five Hundred Rupee notes. The police suspected that the money was to be used for anti-social activities/smuggling/illegal activities etc. and therefore, the case under Sections 419, 420, 467, 468, 471 and 120-B IPC was registered. The police suspected that the money was to be used for anti-social activities/smuggling/illegal activities etc. and therefore, the case under Sections 419, 420, 467, 468, 471 and 120-B IPC was registered. Lateron, after investigation offences under Section 489-A IPC and Section 23 of Foreign Contribution (Regulation) Act were added. Confessional statement of one M.R.Dogra, who is alleged to be connected with the offences, has also been recorded under Section 154 of the Code of Criminal Procedure by the Judicial Magistrate Ist Class, Court No.2,Una. 3. It is undisputed before me that prior to the institution of the present application, two applications praying for grant of bail were filed one before the learned Chief Judicial Magistrate, Una, and the second before the learned Additional Sessions Judge, Una. 4. By order dated 5.2.2011 the learned Chief Judicial Magistrate, rejected the prayer made by the petitioner and the other accused. The prayer of the investigating agency for remanding the petitioner to police custody was rejected and the petitioner was ordered to be detained in judicial custody. While considering the bail application, the Court inter alia noticed the prayer made on behalf of the prosecution that the petitioner herein be remanded to police custody. The Court holds that the recovery of Rs.one crore stands established on the record and that the accused Sanyog Dutt and Ashutosh Sharma had produced one certificate/document issued by co-accused D.K. Dhar that the money being carried by them belonged to the petitioner. Pursuant to the seizure, search of the Monastery of Karmappa at Sidhbari were carried out and recoveries of huge amount of cash in Indian and Foreign currencies was made. The Court holds that the record shows that the accused Kul Parkash was not having any Saving Bank Account with the Ambala Branch of the Corporation Bank. It was further averred that this money was handed over to Rabgey Chhoshang by some other persons whose names were Karma Kukekhampa and Rinzin Bagmo, who are also arrested and are in police custody. The Court then holds:- “10. ……..It is alleged by the investigating agency that accused persons are required for interrogation except accused D.K. Dhar against whom the police prayed for judicial custody. The Court then holds:- “10. ……..It is alleged by the investigating agency that accused persons are required for interrogation except accused D.K. Dhar against whom the police prayed for judicial custody. The main premise for which the police is prayed for by the investigating agency is an out come of document allegedly to have been received by the agency from their police headquarter on the pretext that land deal was struck at Rs.Five Crore and not of Rs.2.5 Crore, which would be rather fallacious on the part of the investigation praying for police remand on a document coming on record from their own possession.” 4. The Court then takes note of the fact that since the amount involved is huge, currency belonging to more than 25 countries has been recovered from the monastery at Sidhbari, the seizure was the stimulus for the recovery of currency of a number of countries from Karmapa Monastery, the amount involved is large, the Court concludes that these activities would undermine the economy of the country and it will be reasonable to presume that in case the accused are released on bail, they would interfere in the progress of investigation and tamper with the prosecution witnesses. The bail applications were rejected and the petitioner was remanded to judicial custody. 5. The petitioner, undeterred, preferred another application before the learned Additional Sessions Judge, Fast Track Court, Una. This application was taken up with the petitions of the other accused. The learned Court noted that the petitioner is said to have entered into a conspiracy with Sanyog Dutt and Ashutosh Sharma for commission of the offences. He had entered into an agreement with the Karmapa Math to sell property situated at Sidhbari in contravention with the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. Adverting to the case against the petitioner, the specific allegation was that he had connived with the others and produced a forged authorization letter in favour of the accused Sanyog Dutt and Ashutosh Sharma authorising them to carry one crore rupees from Delhi. Taking note of various arguments addressed at the bar, the Court ruled that the case is at the investigation stage, there is a possible link between the money recovered involved in this case and huge foreign currency recovered by the Police from the Budhist Math (Monastery) at Sidhbari. Taking note of various arguments addressed at the bar, the Court ruled that the case is at the investigation stage, there is a possible link between the money recovered involved in this case and huge foreign currency recovered by the Police from the Budhist Math (Monastery) at Sidhbari. The police is investigating the case with respect to the purchase of the land by this Monastery and there is a possible nexus between the petitioner and the officials of the Monastery, an agreement to sell was executed inter alia between the petitioner and the "Math”, the identity papers carried by the two occupants of the jeep were fake, the authorising certificate issued by the Manager was not correct, the police should be granted full opportunity to further investigate the case. At that time, the petitioner had also brought to the notice of the Court that this Court vide its order dated 16.2.2011 had disposed of the petition of one Dr.Swatantra Mahajan and Shri Sher Singh (who are also involved in the case of sale of land etc.) on the ground that they are not accused in the case. The petitioner has now filed this application before this Court praying that he be admitted to bail. 6. The petitioner has filed alongwith this petition an application moved by the police before the learned Chief Judicial Magistrate, Una, praying for seven days police remand of the petitioner alongwith Raghve Shosung. The reasons set out are that no sale transaction has taken place at Delhi and the authorization is false. The application then proceeds that the petitioner is involved in sale and purchase of land measuring 52 Kanals conversation of the petitioner with that of Dr.Swatantra Mahajan and an unknown person has been retrieved wherein it is found that the deal was struck for Rs.five crores but it was disclosed that only an amount of Rs.2.5 crores have been shown as the consideration. The petitioner, it is alleged, was a tax evader and verification of the amount found in possession i.e. Rs.one crore was required. The petitioner has placed on record an agreement to sell executed on 10th September, 2010 between the petitioner, Dr.Swatantra Mahajan, Sher Singh and Karmae Garchen Trust for sale of land as detailed therein for total consideration of two crores fifty lacs rupees. The petitioner has placed on record an agreement to sell executed on 10th September, 2010 between the petitioner, Dr.Swatantra Mahajan, Sher Singh and Karmae Garchen Trust for sale of land as detailed therein for total consideration of two crores fifty lacs rupees. This sale deed is duly signed by the vendor which includes the petitioner and Dr.Swatantra Mahajan, Sher Singh as also Gompo Tsering, Rabgay Chosang, Karma Tenksyong Wangpo. Letter dated 29th November, 2010 has been addressed by the Department of Religion and Culture Central Tibetan Administration of H.H. The Dalai Lama to the Deputy Commissioner, Kangra praying that assistance be granted to them, since they intend to purchase land in Dharamshala. This is accompanied by three affidavits of three co-owners of the land. One more reason advanced for opposing the bail was that the investigation at that relevant point of time was in preliminary stage, the money must have been earned and collected through illegal manner for using the same to disrupt National unity and for utilizing it in anti-social activities as a lot of Chinese Currency was recovered from Rabgay Chosang/Karmapa Math from Dharamshala and the petitioner and Davinder Kumar Dhar may also be involved. It is undisputed that no foreign currency constituted any component of the amount seized subject matter of the FIR in this case. 7. Learned Senior Counsel appearing for the petitioner urges that the arrest of the petitioner in the first instance itself was unwarranted as no cognizable offence was perse made out. Mere possession of the money is no offence and the other allegations which have been made are only in the domain of suspicion and not on established facts on record. It is undisputed that an agreement to sell has been entered into with the Monastery but this is no offence under the law, in case it is found that it violates any provision of the H.P. Tenancy and Land Reforms Act, 1972 and more especially Section 118 of the Act it would be open to the State Government to take appropriate action in accordance with law which includes confiscation etc. but the petitioner cannot be detained in prison nor can be charged for the offences as enumerated in this case. Learned Senior Counsel submits that the continued detention of the petitioner is against law. It is undisputed before me that the petitioner is now in judicial custody. 8. but the petitioner cannot be detained in prison nor can be charged for the offences as enumerated in this case. Learned Senior Counsel submits that the continued detention of the petitioner is against law. It is undisputed before me that the petitioner is now in judicial custody. 8. Learned Additional Advocate General has opposed this application and submits that the petitioner is a vital link facilitating the illegal activities of the Monastery at Dharamshala. He is a tax evader. He submits that in the natural course nobody would take cash in such a huge amount. Usually if one is to receive/pay such an amount it is done by demand draft/cheque etc. to keep a track of the money and ensure that tainted money is not injected into the economy of this country. The recovery of such a huge amount of cash perse indicates that the intentions of the persons involved in the transaction are not clean and it may be a part of a Hawala racket. 9. I have considered the rival contentions of the parties and have gone through the record of the case. 10. The petitioner admits the execution of the agreement to sell of the property at Sidh Bari to the Trust, in which he is one of the co-owners. The case made out is that he also admits receiving Rs.one crore as cash in furtherance to this transaction. 11. If the allegation with respect to his land dealings in violation of the provisions of the H.P. Tenancy and Land Reforms Act are accepted, appropriate action in accordance with law can be taken against him. The provisions of the Act as aforesaid do not permit his detention in prison. So far as the other apprehensions are concerned, that the money is uncounted etc. nothing can stop the State and Central Agencies from investigating the said proceedings against the petitioner. Seizure was made on 26.1.2011 and by this time, there should have been sufficient material on the record from the State and Central Agencies enforcing the Prevention of Money Laundering Act, 2002 and Foreign Exchange Management Act, 1999 Foreign Contribution (Regulation) Act to have established vital links. I need not say anything more. I also need to notice that two of the other co-owners Dr. I need not say anything more. I also need to notice that two of the other co-owners Dr. Swatantar Kumar and Shri Sher Singh of the land had approached this Court under Section 438 Cr.P.C. in Cr.M.P.(M) No.75 of 2011 and 89 of 2011 when a statement was made by the prosecution that they have not been arrayed as accused in the case and have only been called to assist in the investigation. 12. I am unable to find anything on the record to show that the petitioner has been proceeded against under the provisions of the Foreign Exchange Management Act, 1999 the Prevention of Money Laundering Act, 2002 the Income Tax Act or the Foreign Contribution (Reulation) Act. Those proceedings would be independent of what has been alleged herein and the detention/custody of the petitioner can be ordered under the provisions of that Act by the appropriate Authority. I need not say anything further. If the petitioner has violated the provisions of any of these Acts, as noticed by me or any other Act/Authority/Bye-laws or any Statute, appropriate action in accordance with law can be taken against the petitioner and this order in no way affects the right of the State/Centre to proceed accordingly. The petitioner is now in judicial lock up. Mere receipt of cash is not an offence, unless it is established that the receipt of cash was pursuant to some offence having been committed that is to say the amount received has been a stolen one or received from illegal activities such as drugs, illegal arms trafficking, espionage etc. The offences for which the petitioner is charged with, are of cheating, and fabricating documents. So far as the offence under Section 489-A is concerned, some currency has been recovered from the Monastery which is stated to be counterfeit, but there is no allegation, that this forms a part of this seizure. The petitioner is in judicial custody and the apprehension that he will tamper with the prosecution evidence, has not been substantiated even by suspicion. I am not commenting on the respective merits of the case of the parties but all that I need say is that the petitioner is in judicial custody and his police remand was also denied by the Judicial Magistrate. I am not commenting on the respective merits of the case of the parties but all that I need say is that the petitioner is in judicial custody and his police remand was also denied by the Judicial Magistrate. It is undisputed that seizure of the Indian and foreign currency at the Monastery of the Karmapa at Dharamshala is not the subject matter of this petition and neither is the Karmapa or other persons who have connived with him have been charged in the present case and that this relates to the offences as mentioned in the FIR which offences are under the IPC. What the Courts below ignored by taking into consideration the activities at the Monastery is the fact that the prosecution has not brought on record any material to show that they were proceeded under the Foreign Contribution (Regulation) Act, 1976, Prevention of Money Laundering Act, 2002, Foreign Exchange Management Act, 1999, Income Tax Act or any other Act/Law/Regulations dealing with reception conversion etc. for foreign currency, violation of any of the Regulations, Notifications issued by the Reserve Bank of India, prohibiting/regulating such activities. It would be in the fitness of things in case the petitioner is directed to be released on bail on the following conditions:- (a) That the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs.two lacs fifty thousand with one surety in the like amount who should be a resident of Himachal Pradesh preferably District Una to the satisfaction of the learned Sessions Judge, Una. (b) That the petitioner shall not tamper with the prosecution evidence nor make any overt or covert attempt to do so. The petitioner shall not overawe, influence, intimidate the prosecution witnesses or in any manner attempt to do so. (c) That the petitioner shall report to the Station House Officer, Police Station, Una, every day. (d) That the petitioner shall undertake that he shall not abscond from the jurisdiction of the learned Sessions Judge, Una and shall not obstruct the smooth progress of the trial nor shall he in any manner obstruct the investigation. (e) That the petitioner shall further undertake to be present for investigation as and when called for which purpose a Hukumnama shall be sent to him by the police intimating and informing him that he required for the purposes of investigation. (e) That the petitioner shall further undertake to be present for investigation as and when called for which purpose a Hukumnama shall be sent to him by the police intimating and informing him that he required for the purposes of investigation. (f) That the petitioner shall apply for bail afresh when challan is put up in Court. 13. In case of violation of any of these conditions, the bail shall stand forfeited, the case will be referred to this Court immediately. The petitioner will be liable to be arrested and taken into custody. 14. That it will be open to the prosecution to apply for such other or further condition(s) which may be required to be imposed in case so required in the interest of justice and in the facts and circumstances of the case. For this purpose it will be open to the State to move this Court. 15. This order does not determine the merits of the case or of any allegation/case which may have been instituted or may be instituted against the petitioner under the provisions of the other Acts and only deals with the FIR in this case. This order does not preclude the State/Centre or any other authority from seeking the custody of the petitioner in accordance with law in case of violation/breach of any other Act/Regulation.