CR.RA/492/2007 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No.492 of 2007 For Approval and Signature: HONOURABLE MR. JUSTICE BANKIM N. MEHTA ========================================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= = VANDANA GOEL, D/O. BHIM JHUNTHRA - Petitioner Versus STATE OF GUJARAT & ANR. - Respondents ========================================================= = Appearance : MR SV RAJU WITH PR NANAVATI & MR VIRAT G POPAT for Petitioner. MS FALGUNI PATEL, APP for Respondent No.1. MR YN RAVANI for Respondent No.2. ========================================================= = CORAM : HONOURABLE MR. JUSTICE BANKIM N. MEHTA Date : 28/02/2008 ORAL JUDGMENT 1. By filing this application under Section 397 read with Section 401 CR.RA/492/2007 2/11 JUDGMENT of the Code of Criminal Procedure, 1973 [“the Code” for short], the petitioner has challenged the order dated 11.07.2007 passed by the learned Special Judge, Court No.4 (Special) for CBI Cases at Navrangpura, Ahmedabad in CBI Criminal Misc. Application No.191 of 2006 whereby the application filed by the petitioner under Section 451/457 of the Code for release of the muddamal has been rejected. 2. On the basis of First Information Report lodged by the Central Bureau of Investigation, Gandhinagar, for the offences punishable under Sections 11, 12, 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 [“the Act” for short], an offence was registered as RC No.25(A)/2004/GNR and the investigation was started against the petitioner, her husband-a public servant, and other person. During the course of investigation, the Investigating Agency seized/put prohibition on the operation of various bank accounts/RBI Bonds (now Fixed Deposit Receipts) held in the names of the petitioner and her husband/children. 3. The husband of the petitioner made an application for release of the accounts/RBI bonds (now FDRs) and other accounts of the family members being CBI Criminal Misc. Application No.17 of 2005 under Section 451/457 of the Code on 10.02.2005, but the said application came to be rejected as being premature by order dated 02.08.2005. Therefore, the husband of the petitioner preferred Criminal Revision Application No.661 of 2005 before the High Court challenging the said order. This Court [Coram: D.N.Patel, J.] disposed of the said Revision Application by order dated 08.08.2006 and observed that there are enough accusations CR.RA/492/2007 3/11 JUDGMENT against co-accused, i.e. husband of the petitioner, but did not analyse the material as investigation was pending but permitted the applicant therein to give application for investment of the amounts in security fetching higher rate of interest. The Court also reserved liberty to move necessary application after some passage of time. Thereafter, on 28.11.2006, the petitioner preferred CBI Criminal Misc. Application No.191 of 2006 for release of muddamal articles, inter alia, contending that she is M.B.B.S. Doctor and has also done a qualified course in Diamonds; that her husband is serving as Joint Commissioner of Customs & Central Excise and was promoted from time to time; that her business of diamonds in the name of M/s.V.B.Exports has nothing to do with the job of her husband and she has reflected profits from M/s.V.B.Exports in her Income-Tax Returns; that she was running the business by complying with the requirements of law; that the bank accounts are required to be operated for day-to-day household expenses and other financial transactions in routine life; that the investigation in the present offence is almost complete; that there being no evidence or justification, the FIR has been registered; that the Investigating Agency has seized/prohibited the operation of the bank accounts though the transactions in these accounts do not reveal any offence alleged to have been committed and, therefore, it cannot be said that the petitioner and her family members operated the bank accounts for illegal transactions and no prejudice will be caused if the seized bank accounts are released; that she is not in a position to pay advance income-tax on the interest accrued on the FDRs and though reasonable time has elapsed after passing of the order yet the investigation has not been completed and it is not likely to be completed in near future. The petitioner made following prayers in CR.RA/492/2007 4/11 JUDGMENT the application: “(A) To release the Bank Accounts seized by the CBI in connection with R.C.No.25(A)/2004/GNR, i.e. mentioned, at Annexure-B to this petition and allow the petitioner and her family members to operate the same on such terms & conditions as this Hon'ble Court may deem just and proper. (B) To release and hand over the custody of RBI Bonds (now FDRs) seized by the CBI in connection with R.C.No.25(A)/2004/GNR, i.e. mentioned at Annexure-E to this petition and on such terms & conditions as this Hon'ble Court may deem just and proper. (B) Pending hearing and final disposal of this petition, to lift the seizure/prohibition from operating the Bank Accounts/RBI Bonds (now FDRs) by the CBI in connection with R.C.No.25(A)/2004/GNR and held by the petitioner and her family members as per the details given at Annexure-B and E to this petition. (C) Be pleased to pass such other and further relief as deemed just and proper in the interest of justice.” 4. After hearing, the learned Special Judge has rejected the application by the order dated 11.07.2007. Being aggrieved by the said decision, the petitioner has preferred this Revision Application. 5. Mr.R.K.Kanhere, Deputy Superintendent of Police, CBI, Gandhinagar, has filed affidavit-in-reply dated 11.02.2008 on behalf of the respondent-CBI, inter alia, contending that 78 witnesses were examined or re-examined during the investigation and after 11.07.2007, 35 witnesses were examined/re-examined and the investigation of the case is spread over to five States and evidence is being collected. It is further contended that the investigation of the case involves inquiries with various institutions CR.RA/492/2007 5/11 JUDGMENT and certain witnesses were untraceable since the commencement of the investigation and to verify the transactions and exports and the proceeds earned through these transactions certain investigation is required to be carried out abroad and process to get the investigation conducted abroad is also initiated. It is also contended that the investigation indicates that the proceeds earned during the transaction of M/s.V.B.Exports, which were invested in the RBI bonds and now invested in Fixed Deposit Receipts, various bank accounts and other assets, are the assets created through the proceeds of crime and, therefore, they are required to be kept available with the authorities so as to take appropriate actions under the provisions of law and the learned Judge has not committed any error and, therefore, revision application is required to be dismissed. 6. I have heard Mr.S.V.Raju, learned advocate for the petitioner, Ms.Falguni Patel, learned Additional Public Prosecutor for the respondent No.1-State and Mr.Y.N.Ravani, learned advocate for the respondent No.2-CBI, at length and in great detail. 7. The husband of the petitioner - Mr.Umeshkumar Gopichand Goel is a public officer serving as an officer in the Department of Central Excise and Customs Services. An F.I.R. was registered against him and present petitioner as well as one Mr.Anil U. Jain for the offences punishable under Sections 11, 12, 13(2) read with Section 13(1)(e) of the Act and the investigation was started. During the course of investigation, by letter dated 15.01.2005 addressed by State Bank of India, the petitioner was informed that operations of Current Account No.01090205183 have been CR.RA/492/2007 6/11 JUDGMENT stopped consequent upon receipt of order dated 19.11.2004 for seizure of property under Section 102 of the Code from Central Bureau of Investigation, Special Police Establishment, Sector 10A, Gandhinagar. Similarly, by letters dated 13.01.2005, the petitioner and her husband were also informed about stop operations of other bank accounts. Therefore, on lodging of the FIR on 02.10.2004, the operation of the bank accounts of the petitioner and her husband were stopped. Thereafter, the public servant, i.e. husband of the petitioner, filed an application to release the bank accounts/RBI bonds and allow him and his wife to operate the same in the trial Court. It was registered as CBI Criminal Misc. Application No.17 of 2005. The petitioner therein made the following prayers: “(a) To release the bank accounts/RBI Bonds seized by CBI mentioned in Annexure-B of this application & allow the applicant and his wife to operate the same. (b) To pass any other order & further orders as may be deemed fit & proper.” 8. The said application came to be rejected by the learned Special Judge vide order dated 02.08.2005 with liberty to move the Court with a fresh application after the charge-sheet is filed. The said order was carried to the High Court by filing Criminal Revision Application No.661 of 2005. This Court [Coram: D.N.Patel, J.] by order dated 08.08.2006 disposed of the Criminal Revision Application reserving the liberty to the applicant to move necessary application before appropriate Court after some passage to time. Thereafter, the petitioner filed the application in the trial Court on 28.11.2006 with the prayers mentioned hereinabove. CR.RA/492/2007 7/11 JUDGMENT 9. In view of above, it becomes clear that after seizure of the bank accounts, the husband of the petitioner filed application for release the bank accounts and RBI bonds and permit him and his wife, i.e. present petitioner to operate the same, but the learned Special Judge rejected the prayers. Therefore, Revision Application was filed in the High Court, but the High Court also did not entertain the application, but reserved the liberty to the applicant-husband of the petitioner herein to move application after some passage of time. A copy of the order annexed with the compilation indicates that the said order came to be passed on 08.08.2006. Thereafter, the petitioner moved similar application for release the bank accounts on 28.11.2006. It is significant that earlier application was moved by husband of the petitioner and not having succeeded in the said application, it appears that the petitioner filed this application only with a view to come out from the earlier order. Therefore, in my opinion, this application is filed only with a view to circumvent the earlier order passed by the High Court. 10. It also appears from the impugned order that the petitioner entered into a partnership with one Mr.Jain and partnership firm started business of diamonds in the name of M/s.V.B.Exports. It also appears that the business generated a huge income of more than Rupees 5.5 Crores in the period of only 57 days. The impugned order also indicates that the petitioner did not invest any amount in the business but was to get 95% of the share of the profits. It is also surprising that such a flourishing business lasted only for 57 days. The petitioner has not offered any explanation as to why such a flourshing business was closed down in such a short CR.RA/492/2007 8/11 JUDGMENT time. Therefore, income generated from such business in such a short time is of doubtful nature. The order also indicates that the income shown in the income tax returns were not supported by any document. The investigation is still in progress. Mr.Ravani, learned advocate for the respondent-CBI has also produced case- diary before the Court to show progress made in the investigation. I have gone through the case-diary. It indicates that the progress has been made in the investigation and vital clue with regard to the commission of the alleged offence is likely to be uncovered. Therefore, the learned Special Judge was justified in passing the impugned order. 11. It appears from the copy of the order passed in Criminal Revision Application No.661 of 2005 (Annexure-F) that the petitioner therein, i.e. Umeshkumar Gopichand Goel, claimed that the money which has been seized by the CBI is his money and he wants to utilize the same and, therefore, the amount may be returned to him after taking due security. The order also indicates the accusations levelled against the applicant therein were found enough. Therefore, the learned Special Judge was justified in passing the impugned order. 12. It also appears from the averments made in the application filed before the learned Special Judge that the Investigating Agency is carrying out the investigation. The affidavit-in-reply filed by the CBI also indicates that the statements of number of witnesses have been recorded and the investigation involves various institutions and crucial witnesses were not traceable. It also appears that in order to verify the transactions and authenticity of export of CR.RA/492/2007 9/11 JUDGMENT diamonds and proceeds earned through such transactions, investigation abroad is also required and process to get investigation conducted abroad is also initiated. Considering the magnitude of the offence, the investigating agency is likely to take time to complete the investigation. Therefore, the learned Special Judge was justified in passing the impugned order as the amounts seized and invested are protected from loss and would fetch interest thereon. 13. Mr.Raju, learned advocate for the petitioner, has also submitted that the investigation is pending since long, but the charge-sheet has not been filed and, therefore, the petitioner is entitled to the reliefs claimed in the application. He has relied upon the decision of this Court in the case of Gitaben B. Shah vs. State of Gujarat, 1997 (2) GCD 616. It was in the facts of that case that this Court held that the powers could be exercised by Magistrate under Section 451 of the Code, but in the facts of the present case, this decision is not applicable. Therefore, the argument that because the investigation is pending since long, the muddamal should be released, cannot be accepted. 14. Mr.Raju, learned advocate for the petitioner, has relied upon decision in D.S.P., Chennai vs. K.Inbasagaran, 2005 (10) Scale 1. The said decision cannot be made applicable in the facts of the present case as it was at the end of trial, the contention with regard to disproportionate assets was decided. Mr.Raju, learned advocate, has also relied upon the decision in Sunderbhai Ambalal Desai vs. State of Gujarat, (2002) 10 SCC 283 with regard to disposal of muddamal articles. In the said decision, the Hon'ble CR.RA/492/2007 10/11 JUDGMENT Supreme Court has issued guidelines with regard to exercise of powers under Section 451 of the Code in order to protect the property seized during the investigation. In the present case, the muddamal articles are in the form of fixed deposit receipts and the bank accounts. It is stated that all the amounts are invested in FDRs and, therefore, the amounts are secured. In view of the nature of accusations against the petitioner, in my view, the principles laid down in this decision are properly followed by the learned Special Judge by investing the amounts. 15. Mr.Ravani, learned advocate for the respondent-CBI has relied upon the decision in State of Maharashtra vs. Tapas D. Neogy, 1999 (7) SCC 685. In the said decision, the Hon'ble Supreme Court has observed as under: “Having considered the divergent views taken by different High courts with regard to the power of seizure under Section 102 of the Code of Criminal Procedure, and whether the bank account can be held to be 'property' within the meaning of said Section 102(1), we see no justification to give any narrow interpretation to the provisions of the Criminal Procedure Code. It is well known that corruption in public offices has become so rampant that it has become difficult to cope up with the same. Then again the time consumed by the courts in concluding the trial is another factor which should be borne in mind in interpreting the provisions of Section 102 of the Criminal Procedure Code and the underlying object engrafted therein, inasmuch as if there can be no order of seizure of the bank account of the accused then the entire money deposited in a bank which is ultimately held in the trial to be the outcome of the illegal gratification, could be withdrawn by the accused and the courts would be powerless to get the said money which has any direct link with the commission of the offence committed by the accused as a public officer. We are, therefore, persuaded to take the view that the bank account of the accused or any of his relation is 'property' within the meaning of Section 102 of the Criminal Procedure Code and a police officer in course of investigation can seize or prohibit the operation of the said CR.RA/492/2007 11/11 JUDGMENT account is such assets have direct links with the commission of the offence for which the police officer is investigating into. The contrary view expressed by Karanataka, Gauhati and Allahabad High Court, does not represent the correct law. It may also be seen that under the Prevention of Corruption Act, 1988 in the matter of imposition of fine under subsection (2 of Section 13, the legislatures have provided that the courts in fixing the amount of fine shall take into consideration the amount or the value of the property, which the accused person has obtained by committing the offence or where the conviction is for an offence referred to in clause (e) of Ss. (1 of Section 13, the pecuniary resources or property for which the accused person is unable to account satisfactory. The interpretation given by us in respect of the power of seizure under Section 102 of the Criminal Procedure Code is in accordance with the intention of the legislature engrafted in Section 16 of the Prevention of Corruption Act referred to above.” 16. In view of the above, the learned Special Judge was justified in passing the impugned order and has not committed any jurisdictional error. The learned advocate for the petitioner has not been able to point out that the impugned order is either erroneous or perverse and, therefore, this application is required to be dismissed. In the result, this application fails and stands dismissed. Rule is discharged. [Bankim N. Mehta, J.] Rajendra