The Supreme Court on Thursday (November 5) transferred to the Allahabad High Court a writ petition filed by former Uttar Pradesh Minister and Samajwadi Party leader Mohd. Azam Khan challenging his arrest by the Enforcement Directorate (ED) allegedly made just 40 minutes after his release from jail on October 29 in the Dual PAN Card case.
The bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi directed the transfer of the records of the High Court within two days, and the Registrar General of the High Court was directed to place the matter before the Chief Justice for a listing before the division bench on November 16.
The bench, without expressing anything on the merits of the case, was of the view that the appropriate course is to approach the High Court. Khan was given liberty to amend the petition and file additional materials.
Senior Advocate Kapil Sibal, for Azam Khan, termed the ED arrest "pure persecution", as it was done when he had secured release in all other cases. "I will fight everything but I want bail. I am 80 years old. They arrested me in ED case and in 28 cases more so I will die in jail," Sibal said.
Contending that the arrest was "mala fide", Sibal submitted that it has been done with the sole intention of ensuring that he would be in jail during the time of upcoming UP assembly elections. He said that he was whisked away by the ED right outside the jail as soon as he came out on bail.
"Incident is of 2006; the FIR filed in 2019. How does PMLA come in?" Sibal asked. Even "goats and cows" are shown to be proceeds of crime, Sibal highlighted.
"Just see the allegation. Now it is a list that in 2016 the accused forcibly entered her house and looted 5000 cash and one tola Gold earrings and demolished her home with a bulldozer. Then next complaint is that on the same day, the accused entered the house, threatened the family and destroyed, property looted cash, and demolished the home, took 4 goats. Goats and cows become the proceeds of crime...what is all this going on?" Sibal said.
"Your argument may have some substance, but we don't want to express any opinion," observed CJI Surya Kant.
The plea seeks quashing of the ED arrest as well as the subsequent judicial custody remand order. On October 29, the High Court had suspended the seven year sentence of Azam Khan and his son Abdullah Azam Khan in the dual PAN Card forgery case.
Khan has also challenged the November 1 order passed by the Special Court remanding him to judicial custody. By way of interim relief, he has sought release from custody.
Background
The ED case arises from the predicate offence of forgery in which Khan and his son have been convicted. In November last year, a Magistrate of the Rampur Court found them guilty under Sections 467, 468, 420, 471 and 120-B of the IPC for the offences of forgery, cheating, using forged documents and criminal conspiracy.
The case was registered based on the FIR lodged in 2019 by BJP leader Akash Saxena, now an MLA, alleging that Abdullah had used two PAN cards containing different dates of birth and gained undue benefits through their use.
According to the prosecution, Abdullah initially obtained a PAN card from the Income Tax Department showing 1 January 1993 as his date of birth. This matched the date recorded in his school and High School certificates. That PAN was also used to operate a bank account and file income tax returns.
However, it was further alleged that for the purposes of contesting the 2017 Assembly elections, Abdullah altered his bank passbook and also changed the PAN details and filed the forged copy of the passbook while submitting his nomination papers.
The second PAN recorded his date of birth as 30 September 1990. This alleged fabrication was made so that he could be eligible to contest the polls (minimum age requirement of 25 years). The prosecution argued that Abdullah had done so in conspiracy with his father Azam Khan.
It was also claimed that the bank account mentioned in the nomination papers was neither linked to nor operated through the second PAN.