Md Enamul Haque vs Central Bureau Of Investigation
2021 Latest Caselaw 5650 Cal

                    IN THE HIGH COURT AT CALCUTTA
               CRIMINAL MISCELLANEOUS JURISDICTION
                              APPELLATE SIDE

The Hon'ble Justice Arijit Banerjee
                   And
The Hon'ble Justice Bivas Pattanayak


                              CRM No. 5100 of 2021

In Re: An Application for bail under section 439 of the Code of Criminal
Procedure.

                        In the matter of : Md Enamul Haque.
                                           versus
                           Central Bureau of Investigation
  For the Petitioner:     Mr.Milan Mukherjee, Sr Adv.
                          Mr. Sandipan Ganguly, Sr Adv,

                          Ms. Sreyashee Biswas,Adv.

                          Ms. Benajir Hasna, Adv.

                          Mr. D Dutta,Adv.

  For the CBI:            Mr. Y.J Dastoor, Id, ASG

                          Mr. Phiroze Edulji

                          Mr. Samrat Goswami

Heard on:                 07.10.2021

Judgment on:              11.11.2021

BIVAS PATTANAYAK, J. : -

1.

This is an application for bail under section 439 of the Code of Criminal

Procedure in connection with Special Case no.01 of 2021(arising out of CBI FIR

no. RC 0102020A0019 dated 21.09.2020) under sections 120B/420 of the Indian

Penal Code and sections 7, 11, 12 of the Prevention of Corruption Act, 1988.

2. The case of the prosecution in nutshell is that a preliminary enquiry (PE) being

no. PE0102018A0004 was registered on 06.04.2018 by the CBI, ACB, Kolkata

against Shri Satish Kumar, the then Commandant of 36th Battalion of Border

Security Force (BSF), Md Enamul Haque, Shri Bhuvan Bhaskar s/o Satish

Kumar and others on the allegation of misconduct by public servant. In the

preliminary enquiry it revealed that cattle from India to Bangladesh across the

international border of these two countries were sent in large numbers illegally by

paying illegal gratification to the BSF personnel who were responsible to prevent

cross-border movement of men and property and safeguard the interest of India.

Further it is alleged that during the posting of Shri Satish Kumar as Commandant

of BSF, 36th Battalion, between the period from 19.12.2015 to 22.04.2017, more

than 20,000 cows were seized by Border Security Force when those were about

to be transported across the border to Bangladesh, however neither any vehicle

carrying the animals nor any person was seized or apprehended at the time of

seizure. The cattle so seized were shown in the seizure memo of the BSF to be

small in size/common breed in order to reduce the auction value of such cattle.

Thereafter the seized cattle were put into auction immediately within 24 hours of

seizure with the help of nearest Customs station at Jangipur, Murshidabad and

the traders like Md Enamul Haque, Anarul Sk, Golam Mustafa in unholy nexus

with the officials procured such cattle at a considerable lower price. It is further

alleged that in lieu of such favour, Md Enamul Haque used to pay Rs.2000/-per

cattle to BSF officials and Rs.500/-to the concerned Custom officials. Besides the

above, the officials of Indian Customs also used to take bribe of 10% of the

auction price from the successful bidders like Md Enamul Haque, Anarul Sk,

Golam Mustafa. Moreover, it is alleged that only the said batch of traders were

allowed to buy the cattle at very low prices at the auctions. After showing the

auctioned cattle to have been disposed of at local markets the same were

illegally smuggled across the international border. Further Shri Satish Kumar got

his son Shri Shri Bhuvan Bhaskar employed in the company of Md Enamul

Haque at a monthly salary of Rs 30,000/- to Rs 40,000/- between May, 2017 to

December, 2017 which reflects upon his close relationship with the partners of

unholy nexus. On such basis a regular case was registered against the petitioner

and others under section 120 B of Indian Penal Code and section 7, 11 and 12 of

the Prevention of Corruption Act, 1988.

3. The petitioner, who was arrested on 06.11.2020 in connection with the

aforesaid case and is in custody since then, seeks bail.

4. Learned Senior counsel appearing on behalf of the petitioner submitted that

the CBI has lodged two cases against the petitioner over the self same set of

allegation, the first being RC1(A)/2018/CBI/ACB/Cochin dated 31.01.2018 under

sections 7,13(2) read with section 13(1) (a) & (d) of Prevention of Corruption Act

registered by CBI, ACB, Cochin, Kerala and the second is the instant case being

no. RC 0102020A0019 dated 21.09.2020 under section 120 B of Indian Penal

Code and sections 7, 11 and 12 of the Prevention of Corruption Act, 1988. The

first FIR dated 31.01.2018 was initiated on the ground that a BSF Commandant

namely J.D Mathew of the 83rd Battalion, Murshidabad, who was responsible for

preventing smuggling activities, abused his official position and received illegal

gratification from the petitioner. The petitioner was granted statutory bail on

07.05.2018. The petitioner was also permitted to travel abroad on three

successive occasions by the order of the court at Kerala and he returned to India

within the stipulated time. Further, after the forensic auditing of the 26 bank

accounts of the petitioner was completed, all those bank accounts were unfrozen

by an order of Hon'ble High Court of Kerala and the CBI had no objection to

allowing the petitioner to operate those accounts. Moreover the learned court

also directed that the passport of the petitioner be returned to him. The CBI did

not file any application in the said case alleging violation of any terms of the bail

enjoyed by the petitioner or that the petitioner has tampered with any evidence or

influenced any witness.

4.1. It is further submitted on behalf of the petitioner that the allegation against

the petitioner is that he along with his other associates formed an organised

syndicate of cattle smuggling in Murshidabad by creating a close nexus with

Satish Kumar (Accused no.1) the erstwhile Commandant of 36th Battalion of

BSF, Murshidabad. However, the role of the petitioner is no different from the

role ascribed to accused Satish Kumar, Anarul Sk and Md Golam Mustafa who

have all been granted bail by the learned trial court. Moreover Abdul Latif Sk,

Atikur Rahman Kureshi, Rinku and Jenarul etc who were described as

associates of the petitioner have not been made accused by the CBI and besides

that the allegations qua the petitioner are the same as that against Anarul Sk

(accused no.3) and Golam Mustafa (accused no.4) as is appearing at page no.

26 of the charge sheet. The grant of bail to accused no.3 and 4 by the learned

trial court has not been challenged by the CBI and they did not have any

objection. The present petitioner is similarly circumstanced with that of accused

persons who have been granted bail by the learned trial court.

4.2. Further it is submitted on behalf of the petitioner that it is the case of the CBI

that the petitioner provided bribe to Satish Kumar through petitioner's staff

namely Manoj Sana and Ajijul Haq Molla, who deposited purported bribe money

in the bank account of Tanya Sanyal (accused no.5 and wife of Satish Kumar)

and Badal Krishna Sanyal (accused no.6 and father-in-law of Satish Kumar). But

neither have they been made accused nor witness and as such there cannot be

any link in the prosecution case against the petitioner without those persons

being named either as accused as or as witness. Further the purported

beneficiaries being accused no.5 and 6 have been granted bail immediately upon

their surrender before the learned trial court. The prosecution did not object to

the said bail. In the circumstances of the case the petitioner is better placed than

accused nos.5 and 6.

4.3. Moreover, it is submitted on behalf of the petitioner that the prosecution has

alleged that the petitioner used financial expertise of one Rajan Poddar his

auditor to show income out of the fictitious business activities as that of his wife

namely Rasheda Bibi (accused no.7), in order to convert his illegal income into

legitimate income of his wife. However Rajan Poddar, the auditor of the petitioner

has not been made an accused and instead has been made a witness, though as

per prosecution it is Rajan Poddar who showed income out of the fictitious

business activities of the petitioner as that of his wife namely Rasheda Bibi

(accused no.7) in order to convert the petitioner's illegal income into legitimate

income of his wife. The prosecution cannot in the same breath say that the

petitioner is guilty of any offence when Rajan Poddar has not been arraigned as

an accused. That apart Rasheda Bibi (accused no.7) has been granted bail by

the learned trial court immediately upon surrender and the prosecution did not

object to her bail. Therefore there is no cogent ground or reason for further

incarceration of the petitioner.

4.4. It is further submitted on behalf of the petitioner that he shall cooperate with

the legal processes and does not pose any flight risk in view of the fact that the

petitioner duly complied with notices under section 41A of CrPC issued to the

petitioner in connection with the instant case. The petitioner attended the office of

CBI in compliance to a notice under section 160 of CrPC. The learned Special

Judge, CBI, New Delhi granted transit/interim bail to the petitioner with a direction

to appear before the investigating officer at Kolkata after taking into consideration

all the facts of legal compliance by the petitioner.

4.5. Moreover it is submitted on behalf of the petitioner that preliminary enquiry

was registered on 06.04.2018 and the petitioner was arrested on 06.11.2020

after nearly 2 years and 6 months of registration of the preliminary enquiry.

However there does not exist any allegation of the petitioner influencing any

witness during such period. Further there is no likelihood of early conclusion of

the proceedings. Moreover the petitioner cannot effectively defend himself

against the charges brought against him by the CBI while being in custody.

In the light of their above submissions learned Senior advocates prayed for

enlargement of the petitioner on bail.

5. In reply to the aforesaid contentions made on behalf of the petitioner, Learned

Additional Solicitor General appearing for the CBI submitted that the petitioner

formed an organized syndicate for cattle smuggling in Murshidabad along with

other FIR named accused persons and many others and also entered into an

unholy nexus with accused Satish Kumar, the then Commandant of 36 th Battalion

of BSF and managed free access to the International Indo-Bangladesh border for

cattle smuggling. The petitioner provided illegal bribe to accused Satish Kumar

through his staff by way of depositing crores of money in the bank account jointly

maintained by accused Smt Tanya Sanyal (wife of accused Satish Kumar) and

accused Shri Badal Krishna Sanyal (father-in-law of accused Satish Kumar) at

Axis Bank, Salt Lake Branch. The dates of deposit mentioned in the handwritten

diary of the said staff of the petitioner exactly matched with deposits reflected in

the account statement maintained at Axis Bank. Further the petitioner using the

financial expertise of Shri Rajan Poddar showed fictitious business activities in

the name of accused Smt Tanya Sanyal (wife of accused Satish Kumar). Further

the petitioner had also used the financial services of his auditor namely Rajan

Poddar for managing his illegal income out of cattle smuggling by way of showing

fictitious business activities in textile and cotton yarn in the name of his wife

namely accused Rasheda Bibi. The petitioner had also given crores of rupees to

persons belonging to political party and local administration and also arranged

false and fabricated sale deals of cattle at Birbhum in order to justify the disposal

of cattle purchased by him through auction at Customs Department,

Murshidabad, while those were actually smuggled to Bangladesh through the

international border. The petitioner is a very influential person as would be

evident from the fact that in spite of Look out circular (LOC) being issued in his

name he was allowed to enter India on 01.03.2018 through Mehidipur Land

Customs and therefore there is every possibility of his influencing the witnesses

during trial which cannot be ruled out. Last but not the least the petitioner got

arms licence issued by State government of Nagaland falsely declaring himself to

be local resident though he never resided in the said State. In view of his above

submissions he prayed that the petitioner, being the principal accused and

kingpin in carrying smuggling activities across the border by bribing the

government officials, should not be favoured with liberty of bail and therefore the

same needs to be rejected.

6. We have heard the learned Advocates for the petitioner as well as for the CBI

at length and perused the material placed before us in the case diary and the

documents relied upon by the petitioner.

7. It is prima facie found from statements of witnesses recorded under section

161 / 164 of CrPC and available material that this petitioner formed an organised

syndicate for cattle smuggling in Murshidabad through the international border of

Indo-Bangladesh and he was assisted by his other associates namely accused

Anarul Sk, Golam Mustafa and others. Further it is revealed that the BSF

personnel used to seize the cattle from the person intercepted while trying to

smuggle cattle from India to Bangladesh and those were sent to Customs

Department for auction. No other persons apart from the petitioner and his men

were allowed to participate in auction held of the seized cattle during 2015 -2017

and the cattle were awarded among them only, as the petitioner had close nexus

with the government officials. The BSF officials also manipulated the breed,

category and numbers of the seized cattle in the seizure memo at the instance of

the petitioner. Thereafter the cattle were smuggled to Bangladesh through the

Indo-Bangladesh Border and the BSF officials did not interfere with such

smuggling of cattle by the petitioner and they provided smooth access. The

material further reveals that the petitioner entered into an unholy nexus with

accused Satish Kumar the then Commandant of 36th Battalion of BSF for free

access to the international Indo-Bangladesh border for carrying out cattle

smuggling and for the same he provided bribe to accused Satish Kumar through

his staff by way of depositing Rs.12.80 crores in the joint account maintained by

accused no.5 namely Tanya Sanyal (wife of Satish Kumar) and accused no.6

namely Badal Krishna Sanyal (father-in-law of Satish Kumar). Thus prima facie it

is apparent that this petitioner is the principal accused that ran the show in order

to smuggle cattle through the Indo-Bangladesh Border and at his instance crores

of rupees were given as bribe to the BSF Commandant for providing protection

and smooth passage through the Border. Moreover, it is prima facie patent that

the petitioner with the assistance of financial expertise of one auditor floated

fictitious business activities in order to convert his illegitimate income into

legitimate income. It is undisputed that the other case registered by CBI, ACB,

Cochin, Kerala being no. RC1(A)/2018/CBI/ACB/Cochin dated 31.01.2018

against the petitioner under sections 7,13(2) read with section 13(1) (a) & (d)

Prevention of Corruption Act is also on the ground of giving illegal gratification to

one commandant of BSF. In the instant case charge sheet has been submitted

by the CBI against the petitioner under sections 120B/420 of the Indian Penal

Code read with sections 7, 11, 12 of the Prevention of Corruption Act, 1988.

7.1 Learned Senior counsel appearing on behalf of the petitioner sought parity on

the ground that the petitioner is similarly circumstanced as of the accused

persons who have been granted bail by the learned trial court. In this regard we

are of the considered view that as from the material it prima facie appears that

this petitioner is the kingpin at whose instance the entire gamut of the alleged

offence of smuggling cattle through the Indo-Bangladesh border was carried on,

he does not stand on the same footing with the other accused persons.

7.2. It has further been pressed into service on behalf of the petitioner that one

Manoj Sana and Ajijul Haq Molla allegedly deposited the purported bribe money

in the bank account of the wife and father-in-law of Satish Kumar namely Tanya

Sanyal (accused no.5) and Badal Krishna Sanyal (accused no.6) but neither they

have been made accused nor witness and as such there cannot be any link in

the prosecution case against the petitioner without those persons being named

either as accused or as witness. Upon perusal of the case diary it appears that

both the aforesaid persons have been examined by the investigating agency and

their statements have been recorded under section 161 of the CrPC, however

they have not been listed as witness in the charge sheet. Be that as it may, those

matters and its consequences are to be decided in the trial and not mentioning of

those witnesses in the list does not per se exterminate the petitioner of his

involvement in the alleged offence.

7.3. It is further argued on behalf of the petitioner that as per the prosecution in

order to convert his illegal income into legitimate income of his wife, the petitioner

took assistance of one auditor namely Rajan Poddar, who showed income out of

the fictitious business activities of the petitioner as that of his wife namely

Rasheda Bibi (accused no.7), however he has not been made an accused and

instead has been made a witness. The prosecution cannot in the same breath

say that the petitioner is guilty of any offence when Rajan Poddar has not been

arraigned as an accused. Be that as it may, we are of the view that those matters

and its consequences are to be decided in the trial.

7.4. It has been further argued on behalf of the petitioner that he has all along

cooperated with the legal processes and thus he does not pose any flight risk. In

our considered view keeping in mind the material available against the petitioner

relating to his involvement in the alleged offence of serious nature, such ground

can hardly be of any consequence.

7.5. Learned Senior advocates further argued on behalf of the petitioner that

there is no reasonable apprehension that the petitioner would influence any

witness in view of the fact that the petitioner was arrested after 2 years and 6

months of registration of preliminary enquiry, however, there is no allegation that

during such period of preliminary enquiry till his arrest, the petitioner influenced

any witness. In reply learned Additional Solicitor General has asserted on the

point that in spite of having Look out circular (LOC) opened, the petitioner was

allowed to enter India through Mehidipur Land Customs which clearly indicates

the influential aspect. The fact that the petitioner did not influence any witness, in

between the period of registration of preliminary enquiry and his arrest, has not

been disputed. As regards the entry of the petitioner into India during existence

of look out circular is concerned, we find from the letter dated 26.11.2020 of the

Foreigners' Regional Registration Officer, Kolkata that the petitioner went to

Dhaka from Kolkata Airport on 23.02.2018 at 16.05 hours and his departure

immigration clearance was made on the said date at 15.15 hours and during

such departure the LOC against the petitioner could not be detected as at that

time it was not opened. It is further revealed from the aforesaid letter that the

petitioner entered India through Mahadipur Land ICP manned by West Bengal

police personnel and at that time the LOC against the petitioner was active.

However, there is no investigation to the effect that the petitioner by dint of his

influence entered into India when the LOC was active. Be that as it may, we are

not oblivious to the modus operandi undertaken by the petitioner for carrying out

the illegal activities of cattle smuggling through the Indo-Bangladesh border by

providing illegal gratification to the government authorities which on the face of it

shows his conduct of influencing persons for getting things done at his instance.

Such aspect constrains us to observe that the possibility of this petitioner

influencing the witnesses in the trial cannot be ruled out.

7.6. Another argument that has been advanced on behalf of the petitioner is that

in order to have fair adjudication under the law the petitioner needs to be

released on bail as he cannot defend himself effectively while being in custody.

Having considered the nature and gravity of the offence discussed in the

foregoing paragraphs, we are of the view that such ground does not hold good.

8. We may profitably reproduce the observation of the Hon'ble Apex Court made

in its decision passed in Nimmagadda Prasad versus Central Bureau of

Investigation reported in (2013) 7 SCC 466:

" 23. Unfortunately, in the last few years, the country has

been seeing an alarming rise in white-collar crimes, which

has affected the fibre of the country's economic structure.

Incontrovertibly, economic offences have serious

repercussions on the development of the country as a

whole. In State of Gujarat versus Mohanlal Jitamalji Porwal

and Anr (1987) 2 SCC 364 this Court, while considering a

request of the prosecution for adducing additional evidence,

inter alia, observed as under: (SCC p.371, para 5)

"5. ...... The entire community is aggrieved if the economic

offenders who ruin the economy of the State are not

brought to book. A murder may be committed in the heat of

moment upon passions being aroused. An economic

offence is committed with cool calculation and deliberate

design with an eye on personal profit regardless of the

consequence to the community. A disregard for the interest

of the community can be manifested only at the cost of

forfeiting the trust and faith of the community in the system

to administer justice in an even-handed manner without fear

of criticism from the quarters which view white-collar crimes

with a permissive eye unmindful of the damage done to the

national economy and national interest."

24. While granting bail, the court has to keep in mind the

nature of accusations, the nature of evidence in support

thereof, the severity of the punishment which conviction will

entail, the character of the accused, circumstances which

are peculiar to the accused, reasonable possibility of

securing the presence of the accused at the trial,

reasonable apprehension of the witnesses being tampered

with, the larger interests of the public/State and other

similar considerations. It has also to be kept in mind that for

the purpose of granting bail, the legislature has used the

words "reasonable grounds for believing" instead of "the

evidence" which means the court dealing with the grant of

bail can only satisfy itself as to whether there is a genuine

case against the accused and that the prosecution will be

able to produce prima facie evidence in support of the

charge. It is not expected, at this stage, to have the

evidence establishing the guilt of the accused beyond

reasonable doubt.

25. Economic offences constitute a class apart and need to

be visited with a different approach in the matter of bail. The

economic offence having deep-rooted conspiracies and

involving huge loss of public funds needs to be viewed

seriously and considered as a grave offence affecting the

economy of the country as a whole and thereby posing

serious threat to the financial health of the country."

9. The Hon'ble Apex Court has also made similar observation in Y.S Jagan

Mohan Reddy versus Central Bureau of Investigation reported in (2013) 7

SCC 439 which is reproduced hereunder:

" 34. Economic offences constitute a class apart and need to

be visited with a different approach in the matter of bail. The

economic offences having deep-rooted conspiracies and

involving huge loss of public funds need to be viewed

seriously and considered as grave offences affecting the

economy of the country as a whole and thereby posing

serious threat to the financial health of the country.

35. While granting bail, the court has to keep in mind the

nature of accusations, the nature of evidence in support

thereof, the severity of the punishment which conviction will

entail, the character of the accused, circumstances which are

peculiar to the accused, reasonable possibility of securing

the presence of the accused at the trial, reasonable

apprehension of the witnesses being tampered with, the

larger interests of the public/State and other similar

considerations."

10. Taking into consideration the materials as above, the nature, gravity and

severity of the accusations and keeping in mind the observation of Hon'ble Apex

Court, without expressing any opinion on the merits of the case, we are not

inclined to allow the prayer of the petitioner for bail. Hence the same stands

rejected. Any observation made in this order shall not be construed as any

opinion on merits of the case of either of the parties.

11. The CRM no.5100 of 2021 is accordingly dismissed.

Urgent certified website copies of this judgment, if applied for, be supplied to the

parties subject to compliance with all requisite formalities.

(Bivas Pattanayak, J.)

I agree.

(Arijit Banerjee, J.)