Nandini Bharadwaj Nanjundaswamy ... vs Union Of India & Ors
2023 Latest Caselaw 5883 Cal

                       IN THE HIGH COURT AT CALCUTTA
                           Constitutional Writ Jurisdiction
                               Appellate Side


Present:
The Hon'ble Justice Jay Sengupta


                                WPA 13812 of 2023
                                 CAN 1 of 2023

              Nandini Bharadwaj Nanjundaswamy @ Nandini Gupta & anr.
                                      Versus
                                Union of India & Ors.

For the petitioner:                     Mr. Sabyasachi Banerjee
                                        Mr. Sumit Mishra
                                        Ms. Prachi Gaweriwala
                                        Ms. Minal Palana
                                                              .....Advocates
For the ED:                             Mr. Dhiraj Trivedi
                                        Mr. Samrat Goswami
                                        Ms. Debjani Ray
                                        Mr. Ankit Khanna
                                        Ms. Supriti Sarkhel
                                                                    .....Advocates
Heard lastly on:                        04.09.2023

Judgment on:                            04.09.2023


Jay Sengupta, J.:



1.     This is an application under Article 226 of the Constitution of India praying

for a direction upon the respondents, especially the respondent nos. 2 and 3 to show

cause as to why the petitioner no. 1 could not travel to Dubai to meet the petitioner

no. 1 and a direction upon the respondent no. 2 to allow the petitioner no. 1 to travel

to Dubai.

2. On 22.06.2023 while hearing this matter, a Co-ordinate Bench of this Court

enquired as to whether the writ petitioner no. 2 who was the main accused in the

accused was willing to appear in answer to the summons dated 14.12.2022

addressed to him by the Enforcement Directorate (ED, for short). On 26.06.2023, the

Court was informed that the petitioner no. 2 shall be available at Kolkata on

25.08.2023 for participating in the enquiries. Accordingly, the Court directed that not

coercive measures shall be taken against the petitioner no. 2 by the ED subject to

participation in the enquiry till 28.08.2023. In the event the ED wanted custodial

interrogation, they shall indicate the same on the adjourned date. Subsequently, the

petitioner no. 2 entered into India at a prior date, informed the ED about his presence

and offered to be examined. He was examined on a few dates. Thereafter, the ED

filed an application praying for vacating of the interim protection granted on

26.06.2023. Affidavits were filed.

3. After an intervening fiasco that the petitioners were apprehended by the CID

near the Court, they were let go with a notice on the petitioner no. 2 for examination.

4. On 28.08.2023 an analysis of examination of the petitioner no. 2 as filed by

the ED was taken on record in a sealed cover. However, it was reported by the

learned counsel of the petitioners that as the petitioner no. 2 left office of the ED after

examination on 25.08.2023, he was picked up by the Electronic Complex Police in

respect of a separate case. Although he was granted bail on the next day, the CID

prayed for and took custody of the petitioner no. 2 in connection with a case started

by them.

5. The order of interim protection granted by a Co-ordinate Bench of this Court

on 26.06.2023 was not challenged by the ED. At best, this Court can look into the

subsequent conduct and circumstances for deciding on whether to continue with the

interim order granted earlier.

6. On 01.09.2023 a list of vital questions that were purportedly not answered

properly by the petitioner no. 2, as filed on behalf of the Enforcement Directorate was

taken on record, perused and kept in a sealed cover along with the statements of

two witnesses who have been examined under Section 50 of the PML Act in the

meantime.

7. Learned counsel representing the petitioners submits as follows. The

petitioner no. 2 came back in India voluntarily only to co-operate with the

investigation. In addition to the co-operation vouched by him, he offered and was in

fact interrogated on several dates by the ED that is on 11th, 12th, 14th, 16th and 17th

August, 2023 and thereafter, on 25th August, 2023. In respect of the documents he

was supposed to submit as per the notices, he submitted all the available

documents. He also answered all the queries put by the Enforcement Directorate. As

he has co-operated with the investigation, there is no reason to ask for his custodial

interrogation. Even the petitioner no.1 has cooperated with the investigation in all

possible ways.

8. Learned counsel appearing on behalf of the Enforcement Directorate submits

as follows. The modus operandi involved was deceiving innocent individuals and

swindling a significant amount of money through various schemes including posing

as representative of companies and offering supports, website sales and loans

through a fake mobile app. The petitioner entered into India under questionable

circumstances through Nepal. His offer to co-operate with investigation was only a

ploy to garner the sympathy of the Court. He answered only the more trivial

questions and avoided or did not answer the real questions. First, the petitioner has

several investments and companies in other countries than what he had admitted.

Even while in CIDs custody the petitioner has been trying to contact his officers over

phone. Statements of two of his personal assistants in this regard had recorded

under Section 50 of the PML Act in the meantime. Another assistant stated that the

petitioner no. 1 tried to remove digital evidence and instructed others in this regard.

The petitioners' signatures in respect of such transactions have been found in the

laptops. There was a look out notice issued not only by the CID, but also by the

Interpol which was also looking for the accused over complaints in other countries.

Since the petitioner no. 2 has been avoiding to reply the more important and relevant

questions and trying to tamper with evidence, the order of "no coercive steps" should

not be continued. The ED would require the petitioner no. 2 for custodial

interrogation. Even the petitioner no. 1 did not comply with the subsequent

summons. Alternatively, in view of the arrest of the accused by the CID the instant

writ petition has practically become infructuous.

9. In reply, learned counsel for the petitioners submits that the petitioner no. 1

was not served with any notice other than the first one at the airport. Besides, it was

the CID who had asked the petitioner to call up his associates for the purpose of

investigation while he remained in their custody.

10. I have heard the learned counsels appearing on behalf of the parties and

have perused the writ petition, the application, the affidavits, the reports regarding

examination of the petitioner no. 2 and the statements of two other witnesses

recorded recently.

11. It is true that apparently the petitioner no. 2 came to India after obtaining an

order of protection upon assuring that he would co-operate with investigation. It is

also true that he came before time, though under rather strange circumstances, and

volunteered to be examined by the ED.

12. However, from the analysis of examination of the petitioner no. 2 on different

dates and from the list of the vital questions, which were allegedly not answered

properly by the petitioner no. 2, it appears that on a number of vital issues, the

petitioner either evaded the questions or answered the same incorrectly. These

were purportedly not only been double checked by the ED through its sources, but

also by finding out evidence to the contrary.

13. From the statements of witnesses examined recently under Section 50 of the

PML Act it appears that even while in the CID's custody the petitioner managed to try

to call some of his associates. At an appropriate stage, the petitioner no. 2 would get

an opportunity to rebut or explain such claim. From another statement it appeared

that the petitioner no. 1 tried to engineer tampering of evidence.

14. There are several incriminating materials already available against the

petitioners.

15. The investigation is now at a crucial stage.

16. Considering the non-cooperation of the petitioner no. 2 in not properly

answering the questions posed by the ED and the alleged attempts of the accused to

tamper with evidence, I find no reason to grant and/or extend the order of no-

coercive steps issued earlier in this writ petition.

17. Accordingly, the writ petition is dismissed.

18. However, the trial Court shall not be swayed by any observations made herein

as the same were made only for deciding the present writ petition.

19. The petitioners shall be at liberty to seek available remedies.

20. With these observations, the writ petition is disposed of.

21. Urgent photostat certified copies of this judgment may be delivered to the

learned Advocates for the parties, if applied for, upon compliance of all formalities.

(Jay Sengupta, J.) NB/05