D.N. Patel, J.@mdashOn the previous date i.e. 29th July, 2010 we had required the Petitioner to appear in person with proof of his identity for examining whether an alleged "sting operation" said to have been conducted by the representative of one of the Respondents of this PIL, showing money bargaining being done between the counsel for the Petitioner and the representative of the Respondents with regard to this litigation, was correct or not.
2. Today an adjournment has been sought on the ground that the learned Counsel for the Petitioner is hospitalized. We, therefore, fixed the case for 16th of August, 2010 to enable the Petitioner to comply with the order dated 29th July, 2010 on the said date.
3. However, considering the long time, which has elapsed, we are of the opinion that before the evidence vanishes or is destroyed by further passage of time, it is necessary to examine the main issue involved in this case that is whether the investigation of the criminal cases should or should not be referred for investigation or further investigation or re-investigation, as may be necessary in the facts of each of the cases, to the Central Bureau of Investigation.
4. The allegations as reported in the newspapers and also mentioned in the writ petition are of earning of unprecedented amount of illicit money by some of the Respondents by abuse of their official positions, which amounts to offence under various provisions of the Indian Penal Code as also under the Prevention of Corruption Act. Some other private Respondents are alleged to have assisted in investment of the money, alleged to have been so acquired by illicit means.
5. Some matters have been under investigation by the Enforcement Directorate under the Prevention of Money Laundering Act, 2002 (hereinafter referred as the PML Act). Some matters are being investigated by the State Investigating Agency, namely, the Vigilance Department of the State of Jharkhand. The Income Tax Department is also examining the matter for its own purposes.
6. Acquiring of money by misuse of official position, being an offence under the various provisions of the Indian Penal Code and under the Prevention of Corruption Act, is to be normally investigated by the State Investigating Agencies. However, if the acquisition of such proceeds of crime is also alleged to be covered u/s 3 of the PML Act, the investigation is to be done by the Enforcement Directorate, to the exclusion of other agencies, in view of Section 45(1A) of the PML Act Even such investigation by the Enforcement Directorate can be transferred by a general or special order of the Central Government to other agencies. For ready reference, Section 45(1A) is reproduced below:
45. Offences to be cognizable and non-bailable.
xxx xxx xxx
(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.
7. Whether the offence is one of the money laundering depends upon whether proceeds of crime (of the offences mentioned in the schedule of the PML Act) are projected as untainted property.
8. The meaning of the words "projecting it as untainted property" requires an interpretation. We have not been shown any authority upon the interpretation of such words. However, the statement of objects and reasons'' of the PML Act gives some indication about the meaning of these words. The said statement of objects and reasons shows that the United Nations Convention against illicit traffic in Narcotics calls for prevention of laundering of proceeds of drug crimes and other connected activities. India was a party to the said Convention. Pursuant to the said decision the PML Bill was introduced in 2002, which came into force in 2005. Subsequently, by Amending Act No. 21 of 2009, the list of offences in the Schedule of the Act was expanded.
9. Prima facie, the idea appears to prevent the illicit proceeds of the specified crimes to be siphoned back through international channels, making it appear that the money coming back from international financial institutions was untainted money, which was being invested in the country.
10. In the present case, the basic allegation is amassing of illicit wealth by various former Ministers, including a former Chief Minister of this State. The money alleged to have been so earned is of unprecedented amounts. However, there is no clear allegation so far about its laundering in the sense mentioned above. But there is an allegation of its investment in property, shares etc., not only in India but also abroad.
11. Therefore, the basic investigation requires to determine whether money has been acquired by abuse of official position amounting to an offence under the Prevention of Corruption Act and under the Indian Penal Code, the persons by whom this has been done, the amount of money which has been so earned and places where it has been invested.
12. The amount is alleged to run into several hundred Crores. The investigations done so far allege that the amount unearthed so far in one case is about one and half Crore and in other case is about six and half Crores, which would appear to be merely the tip of iceberg. The investments having been made not only in various States of this country outside the State of Jharkhand but also in other countries means that the investigation called for is not only multi-State but also multi-National.
13. The matter on the face of it requires a systematic, scientific and analyzed investigation by the expert hand like CBI. A list of some companies involved has been given in an affidavit, filed by Assistant Director in the Directorate of Enforcement (FEMA & PMLA), Sub Zonal Office at Patna, Bihar. These companies are as under:
(1) M/s Monnet Vyapar Pvt. Ltd., Kolkata
(2) M/s Gandhipati Traders and Credits Pvt. Ltd., Kolkata
(3) M/s Basudev Trading Co. Pvt. Ltd., Kolkata
(4) M/s Sumin Credit Company Pvt. Ltd., Kolkata
(5) M/s Ekanta Emporium Pvt. Ltd., Kolkata
(6) M/s Jublee Dealers Pvt. Ltd., Kolkata
(7) M/s Jalasagar Commodeal Pvt. Ltd., Kolkata
(8) M/s Sunkissed Agencies Pvt. Ltd., Kolkata
(9) M/s Arihant Taracom Pvt. Ltd., Kolkata
(10) M/s Kejriwal Finvest Pvt. Ltd., Kolkata
(11) M/s Acme Pvt. Ltd., Kolkata
(12) M/s Jublee Dealers Pvt. Ltd., Kolkata
(13) M/s Prashan Commotrade Pvt. Ltd, Kolkata
(14) M/s Girdhar Syntex Pvt. Ltd., Kolkata
(15) M/s Sevensea Vincom Pvt. Ltd., Kolkata
(16) M/s Prashan Commotrade Pvt. Ltd., Kolkata
(17) M/s Salasar Supplier Pvt. Ltd., Kolkata
(18) M/s J.M. Textiles Pvt. Ltd., Kolkata
(19) M/s Shradha Vyapar Pvt. Ltd., Kolkata
(20) M/s Ajanta Merchants Pvt. Ltd., Kolkata
(21) M/s Megistic Sales Promotion Pvt. Ltd., Kolkata
(22) M/s Hanu Rang Vinmay Pvt. Ltd., Kolkata
(23) M/s Shree Vivek Trading & Credits Pvt. Ltd., Kolkata
(24) M/s Carbel Mercantile Pvt. Ltd., Kolkata
(25) M/s Kolhan Trading Pvt. Ltd., Kolkata
(26) M/s Yashman Deepak Pvt. Ltd., Kolkata
(27) M/s Vinayaka Filease Pvt. Ltd., Kolkata
(28) M/s Doyen Maarketing Pvt. Ltd., Kolkata
(29) M/s Lucky Projects Pvt. Ltd., Kolkata
(30) M/s Creative Fiscal Services Pvt. Ltd., Kolkata
(31) M/s Surnit Credit Pvt. Ltd., Kolkata
(32) M/s India Cars & Motors Pvt. Ltd., Kolkata
14. Following are some of the countries in which money acquired illicitly is alleged to have been invested:
(i) Bangkok (Thailand)
(ii) Dubai (UAE)
(iii) Jakarta (Indonesia)
(iv) Sweden
(v) Liberia
15. It has also been pointed out to us that several Companies like M/s Blue Techno Projects Company Limited (Sanjay Kumar Choudhary, Managing Director), incorporated under the laws of Royal Kingdom of Thailand in which there is allegedly huge investment by accused persons of ill-gotten money (in breach of Prevention of Corruption Act). There are not less than one dozen such foreign companies where few hundred crores of rupees have been invested by the accused. These Companies are:
(i) Suryam Gems & Jewellery, Dubai (UAE)
(ii) KGM Gems, Jewellery, Dubai (UAE)
(iii) Balaji Holdings
(iv) Blue Star Holding, UAE
16. Likewise, it has been argued that there are several Companies in other countries in which there are huge investments by the accused or with the help of accomplices in foreign countries. The lists of countries and companies given above would indicate, prima facie, that the amount involved could not be a mere few crores, but would be nearer a few hundred crores. Since what is alleged to have been uncovered so far is merely a few crores, would make it appear that the investigation so far has been prima facie inadequate. Investigation is therefore required by an agency having the expertise and experience of the nature necessary, without being influenced by the high positions of the Ex. Chief Minister and his other colleague Ministers in the previous Cabinet of the State of Jharkhand.
17. The Investigating Agency of the State has neither the expertize nor the experience of this kind of investigation, as compared to the Central Bureau of Investigation. Moreover, the persons involved held high offices in the State Government and there always remains a possibility of their returning back to those offices in foreseeable feature, which would obviously be an impediment in the way of an impartial, fearless, proper and thorough investigation by the officers of the State Investigating Agency.
18. We further find from the exchange of affidavits that repeated efforts of me Investigating Agencies, which have been investigating the matter so far, including the Income Tax Department and the Enforcement Directorate, have failed to procure the attendance of some of the accused, despite lapse of such a long time.
19. Considering all these circumstances we are of the opinion that having regard to the larger public interest, it would be appropriate to have a comprehensive, proper and thorough investigation by an agency, which is independent of the State Government.
20. In the case of
21. In the present case where Ex. Ministers, including Ex. Chief Minister, are involved, investigation by the State Investigating Agency suffers from the same problem as in the case of Rubabbuddin Sheikh (supra). We, therefore, feel that for a proper investigation inspiring public confidence, it is necessary to hand over the investigation to an independent agency like CBI.
22. We have heard the learned Counsel for all the private Respondents as well as the learned Asstt. Solicitor General representing both the Central Government and the CBI, learned Counsel for the Enforcement Directorate, learned Advocate General for the State of Jharkhand for the best part of the day today. The kind of resistance that is being offered to a probe by CBI, relying upon the existing investigation which, as pointed out above, has not been able to uncover anything below the tip of iceberg, further re-enforces the impression that the probe by the independent agency like CBI is likely to uncover much more. No other explanation has been offered from the side of the Respondents for the resistance to the transfer of investigation to the CBI.
23. Normally the accused or probable accused have no right to be heard while ordering an investigation eg. u/s 156(3) of the Code of Criminal Procedure. Moreover, no accused can claim to have a vested right in respect of the agency, which will investigate the matter, where the investigation is within the competence of the said agency. The interest or apprehension of the accused can be only with regard to the arrest during the pendency of the investigation. It has been argued from the side of some of the Respondents, who are already in jail, that because of the pendency of this PIL and because of the orders passed herein, the consideration of their prayers for bail may be influenced. To dispel this doubt, although it is not needed, yet we clarify that any prayer for bail or anticipatory bail by any person involved or found to be involved, will be considered on its own merits by the appropriate Courts without in any manner being influenced by the pendency of this PIL or by any of the observations made by this Court in any of the orders passed herein, or by the fact that any person has been originally or subsequently been impleaded in this PIL.
24. At present we have been shown no reason to doubt that investigation by the CBI will not be proper and impartial, whereas for the reasons given above there is a likelihood of a reasonable apprehension in the public mind that investigation by the State Agencies is likely to be influenced by various factors, which we have pointed out above. Further, as already stated, further delay in transferring the investigation to the CBI may cause destruction or vanishing of evidence because of the delay.
25. Investigation by CBI where such a huge amount is alleged to have been misappropriated and massive wealth have been accumulated, will lead to exact and accurate charge-sheet in the offences. Innocent persons should not need to worry about accurate investigation. Ultimately, such an investigation is nothing but a good help to the Court conducting the trial. If proper investigation is carried out by well-equipped and unbiased investigating officers it will lead to precise and speedy trial. The type of allegations and the persons alleged to be involved make it necessary in the larger public interest that investigation is done by the CBI. Investigation by CBI is not a punishment. Therefore, the hue and cry made by the private Respondents is uncalled for and unwarranted at this stage.
26. We, therefore, direct that the investigation of the following cases will be transferred forthwith to the CBI. The CBI will take charge of the materials collected so far by the existing investigating agencies for conducting comprehensive, complete and thorough investigation:
(i) Vigilance P.S. Case No. 26 of 2008 dated 26.11.2008 and
(ii) Vigilance P.S. Case No. 9 of 2009 dated 2.7.2009
27. It has been argued that this Court should not even consider transfer of investigation based merely upon the newspaper reports and the allegedly vague allegations of the writ petition.
28. While we prima facie agree that mere media reports may not be sufficient for ordering investigation or transfer of investigation, but in the present case, we find that the media reports stand corroborated, at least in part, by the investigation done so far which has been referred above. Moreover as stated above, the investigation done so far does not appear to have uncovered the kind of wealth which would have been necessary for making so much foreign investment. What has been disclosed in the investigation done so far persuades us to get a more comprehensive and thorough investigation done into the matter by the independent agency like CBI.
29. An attempt has been made on the part of some of the Respondents to give their defence in the form of counter affidavits. Firstly, this defence might have been capable of being examined if the investigation as well as the evidence at the trial was complete. At this stage, it cannot be said with certainty what other material will be uncovered during investigation. It also cannot be said with certainty as to which of the accused will turn approver thereby corroborating the other material collected during investigation and, therefore, the defence cannot be examined at this stage. More importantly, what is being transferred is investigation into an offence and not in respect of a particular accused. It is possible that during investigation some of the Respondents may not be found guilty and it is equally possible that during investigation some people, who are not the Respondents before us, may also be found involved. Therefore, we decline to consider the defence at this stage.
30. So far as the defence about exclusive right of investigation of the Enforcement Directorate is concerned, suffice it to say that it is neither possible nor desirable at this stage to give a positive finding about how much of the crime proceeds have been ''projected as untainted''. Therefore there is an area of overlap, and the same cannot be allowed to form a tool in the hands of the accused to scuttle investigation.
31. Considering the time which has already elapsed, the nature of allegations which have been made and the larger public interest involved, we would expect the CBI to expedite the investigation into this matter to the extent to which it is possible having regard to the resources of the CBI.
32. A copy of this order will be given within 48 hours free of charge to the learned Assistant Solicitor General of India for communication to the CBI, who was represented by the learned Assistant Solicitor General of India for prompt compliance. Similarly, a copy of this order will also be given within the same period to the learned Advocate General for communication to the State Vigilance Department.
33. It will be open to the Central Government to exercise the powers u/s 45(1A) of the Act for transferring the investigation from the Enforcement Directorate to the CBI. If such an order is not passed by the Central Government, any material found by the CBI during investigation, which leads to an inference of money laundering within the PML Act, will be shared by the CBI with the Enforcement Directorate from time to time, to enable the Enforcement Directorate to take such action, as may be necessary.
