AGK AGK AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2343 OF 2008 Shri Moolchand S. Shah @ Choksi ..Petitioner. V/s. Union of India & Others ..Respondents. Mr.D. Shroff i/by Ace Legal Consultants for the Petitioner. Mr.R.V. Desai with Mr.A.S. Rao for the Respondents. CORAM : D.K. DESHMUKH & J.P. DEVADHAR, JJ. DATED : 11TH SEPTEMBER, 2008. P.C. : 1. By this petition, the petitioner challenges the order passed by the tribunal declining to dispense with the condition of predeposit for entertaining his appeal. By the order which has been impugned before the tribunal passed under Section 50 of the FERA, penalty of Rs.35,00,000/- has been imposed on the petitioner. The reason why penalty has been imposed is that it has been found that the petitioner during the period 1992-93 had received and made payments to the tune of Rs.1,89,73,000/- in India by an order for and on behalf of persons outside India without the permission of the R.B.I. The tribunal has passed a reasoned order. The tribunal has found that the petitioner was deeply involved with Tiger Memon, who was responsible for 1993 blast in Mumbai. The tribunal has also held that the contention of the petitioner that he was not given personal hearing also cannot be prima facie accepted. The tribunal has also referred to the confessional statement made by the petitioner before the TADA Court proceedings. The learned counsel appearing for the petitioner argued the matter at length. He submitted that though initially he appeared before the original authority, but after the change in the adjudicating authority he never received any notices and, therefore, the order has been passed in breach of principles of natural justice. The learned counsel for the petitioner relied on a judgment of the Hon’ble Supreme Court in the case of Sangfroid Remedies Limited V/s. Union of India reported in 1998 (103) E.L.T. 5 (S.C.). The learned counsel submits that the aspect of undue hardship has also not been considered by the tribunal properly. He relied on a judgment of the Supreme Court in the case of Benara Valves Limited V/s. Commissioner of Central Excise reported in 2006 (204) E.L.T. 513 (S.C.) and specially the observations made in para 8 of that judgment. The learned counsel also took us through the portion of the judgment of TADA Court which has convicted the petitioner and has sentenced him to undergo imprisonment for a period of five years. The learned counsel informed us that he has filed an appeal against that judgment before the Supreme Court and it is pending. According to the learned counsel, because the petitioner was in custody for a period of five years and thereafter till judgment was pronounced by the TADA Court, he was required to attend the TADA Court almost daily, he could not do any business and, therefore, he is not in a position to deposit the amount which he is required to deposit according to law before his appeal can be entertained and, therefore, according to the learned counsel requiring him to deposit money will cause undue hardship to the petitioner. He further submitted that it is also not established that when he allegedly received money and made payment to Tiger Memon he was not residing in India. 2. This is a petition filed under Article 226 of the Constitution of India. Article 226 confers extra-ordinary jurisdiction on this Court to interfere when the Court find that the action impugned before it has resulted in failure of justice and the jurisdiction is always to be exercised to advance public interest. The order either dispensing with the requirement of predeposit or not dispensing with the requirement is essentially an order in the discretion of the tribunal. After having gone through the record, we find that passing any order, which is in the discretion of the Court in favour of the petitioner would not be in public interest and, therefore, in our opinion the tribunal was fully justified in declining to dispense with the requirement of predeposit in favour of the petitioner. We have gone through the confessional statement made by the petitioner. Perusal of that confessional statement shows that the petitioner was involved in clandestine banking activities for a very long time. Even after his arrest by the C.B.I. in the year 1991, he recommenced his clandestine banking activities. Perusal of the judgment of TADA Court shows that though the TADA Court acquitted him of the charge of conspiracy, there is clear finding recorded by the TADA Court that he had clear knowledge of the terrorist activities of Tiger Memon. The material available on record shows that the petitioner was deeply involved with the outlaws. Following paragraphs from the Judgment of the T.A.D.A. Court show his involvement with the persons involved in the Bombay Bomb blast:- "23. In the aforesaid context, it will be necessary to say that confession of A-97 and the confession of the co-accused and the other evidence is required to be considered carefully to ascertain the aforesaid aspect i.e. whether A-97 was involved in the conspiracy or otherwise. For the reasons which are discussed hereinafter, it can be safely said that such a perusal though reveals that A-97 was involved in commission of offence u/s.3(3) of TADA still there is paucity of material or the absence of material cementing him with the conspiracy for which the charge at head firstly framed against him. Or in other words it can be said that though acts committed by A-97 were in the nature of giving financial assistance to the Tiger Memon who was involved in commission of Terrorist Acts, still the same does not reveal of A-97 having committed the same for furthering the object of conspiracy. In view of the same and mere knowledge of conspiracy being not a sufficient factor for making a person liable for commission of offence under conspiracy, A-97 cannot be held guilty for the offence of conspiracy for which he charged with. However that does not mean that A-97 can be said to be unaware of the activities in which Tiger Memon and his associates were involved. Drawing such an inference would be absurdity. In the said context, it can be further added that direct evidence regarding conspiracy is always hardly available as conspiracy being shrewd business, every culprit involved in the same is bound to take the necessary care to see that their plans are not known to everybody and thereby inviting a danger of conspiracy getting frustrated before the object is achieved. However, as stated earlier knowledge being not sufficient to infer the concerned accused being party to it generally involvement of accused in conspiracy is required to be inferred from over act committed by him and in event of the same being in the nature of or for furthering the object of conspiracy the same would make him guilty for the offence of conspiracy. Such a case being not of A-97 and the acts committed by him being in the nature of Havala transaction and the said process himself having assisted Tiger Memon and his associates by rendering a financial assistance he would be required to be held guilty only for the offence u/s. 3(3) of TADA but the same being not committed for furthering the object of conspiracy he cannot be held guilty for the offence of conspiracy for which he is charged with. 24. In the aforesaid context without unnecessary making the dilation about the matters prayed from the confession of A-97 as found corroborated by the material in the confession of A-10, 46, 26 and the other evidence it is crystal clear that account by name Hati was opened by Tiger Memon with A-97 and the said account was operated by him through A-10, 46 & 26 either as per his direction or as per the direction given by A-1 Yakub Memon. The relevant material clearly reveals that the money was circulated through the said account and the same was used for making the payments for the operation which were effected in pursuance to the conspiracy. The matters from the confession of A-97 in Clauses No.5, 6 and 7 reveals the manner in which the amounts were deposited in the said Hati A/c. and the matters in cl. No.8, 9 & 10 reveals the manner in which the said amounts were removed. The matters stated in Cl. No.11 of the confession of A-97 reproduced hereinabove reveals the manner in which A-97 was keeping the record of the said transaction. Now considering the said matters in light of the relevant part of the material in confession of A-10, 26 & 46 clearly reveal of the said amounts being used for the operations effected in pursuance to conspiracy. Since the relevant part of the material from the confession of A-97 reveals that: 1. A-97 was maintaining an account by name Hathi for Tiger Memon and the same was operated by Tiger Memon through A-10 - Asgar Mukadam and A-26 - Raju Jain. 2. As instructed by Tiger Memon on phone one Farid had been to A-97 twice or thrice in month of September, 1992 and deposited an amount of Rs.25 lakhs and on the same day given the said amount to a person by name Dalpat brought to A-97 by A-26-Raju Jain. 3. In a similar manner A-97 had given an amount of Rs.21 lakhs deposited by Tiger Memon through Farid to one Nanji Bhagwan. 4. On 7.11.1992 Tiger Memon had opened a Hathi Account with A-97 by giving instructions on phone. 5. A-26 had deposited Rs.50 lakhs in the said account orally and Rs.25 lakhs on 10.11.1992 and Rs.16 lakhs on 11.11.1992 and Rs.20 lakhs on 20.12.1992. 6. A-10 - Asgar Yusuf Mukadam in the same account had deposited Rs.12 lakhs on 23.12.1992, R.13.25 lakhs and Rs.3 lakhs on 28.12.1992. 7. A-26 had informed A-97 that the said amounts were from the sale of smuggled silver in the market. 8. A-10 - Asgar Yusuf Mukadam had removed Rs.5 lakhs from the said account by sending a person and another amount of Rs.5 lakhs on 9.02.1993 and further an amount of Rs.5 lakhs on 11.02.1993. 9. On 13.02.1993 A-10 - Asgar Yusuf Mukadam had been to A-97 with a bared person and removed an amount of Rs.1 crore from the said Hathi Account of Tiger Memon. 10. A-10 had been to A-97 with a person by name Haji and taken Rs.20 lakhs from the said account by name Hathi on 9.03.1993 and in the same manner A-97 had paid Rs.10 lakhs to one Ahawali on 10.03.1993 and Rs.25 lakhs to one Irani. 11. The said account was operated by A-10 and A-26 on the instructions from Tiger Memon and A-97 was keeping the record of the said transaction on piece of paper. Since the confession of A-97 is already on record instead of reproducing the matters from the same adverbatem the gist of the same as put to A-97 during his examination u/s.313 of Cr. P.C. has been reproduced hereinabove. 25. Thus considering all the said material, it can be safely said that the account with A-97 was operated for circulating the money which was to be used for effecting the operations to commit the terrorists act in Bombay. It is true that the material in confession of A-97 reveals of A-26 having told that the money deposited was from the Silver Smuggling. However, considering the evidence on record and during the relevant time, Tiger Memon having effected silver smuggling or having received such money being not spelt from the same and thus the relevant matters being belied by the other material on the record the said recital of exculpatory nature will be required to be left out of the consideration by discarding the same. 36. In the light of the discussion made hereinabove point No.180 and so also points regarding involved of A-97 in offence of conspiracy will be required to be answered in consonance with the conclusion arrived during the same, i.e. point No.180 in the affirmative of A-97 being guilty for commission of offence U/s.3(3) of TADA while the points pertaining to the conspiracy will be required to be answered in negative i.e. himself being not guilty for any offence of conspiracy as suspicion even of high degree can never take place of proof of a liability of commission of criminal offence. Hence the said points stand answered accordingly. 3. It was submitted by the learned counsel appearing for the petitioner that because of the detention of the petitioner for five years and because of the requirement of attending the TADA Court continuously thereafter the petitioner has not been able to carry on any business and, therefore, he is not in a position to deposit the amount. In our opinion, if the financial position of the petitioner is such as is submitted by the learned counsel, then if the tribunal had dispensed with the requirement of predeposit and if the appeal was ultimately dismissed, it would have been difficult to recover the amount. One of the aspect that has to be considered while dispensing with the requirement of predeposit is safeguarding the interest of the revenue. In other words, the financial position of the petitioner should be such as can satisfy the tribunal that in case applicant is held liable, he will be in a position to deposit the amount immediately. So far as the contention of the petitioner that he was not served with the notice of personal hearing is concerned it being a question of fact will be considered by the tribunal at the final hearing of the appeal. So far as the contention of the petitioner that it is not established that at the relevant time Tiger Memon was not residing in India is concerned, we have gone through the record and we find that there is sufficient material on record to show that the petitioner was dealing in money with persons who were not residing in India. The record reveals that two brothers of Tiger Memon were living in Dubai and were collecting money there in foreign currency. It is also on record that in 1992 Tiger Memon also went to Dubai. 4. Taking overall view of the matter, therefore, in our opinion, it will not be proper to exercise discretion of this Court in favour of the petitioner. We find that the litigant like petitioner cannot be helped in extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is, therefore, dismissed. D.K. DESHMUKH, J. J.P. DEVADHAR, J.