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'How Will Indefinite Detention Help?': Supreme Court Grants Bail To Accused In Cross Border Cattle Smuggling Case

Mehal Jain
25 Jan 2022 10:45 AM GMT
How Will Indefinite Detention Help?: Supreme Court Grants Bail To Accused In Cross Border Cattle Smuggling Case
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The Supreme Court on Monday remarked that an open-ended investigation into an alleged larger conspiracy which supposedly may have ramifications on national security cannot alone be a ground to refuse bail and indefinitely incarcerate a person.The bench of Justices D. Y. Chandrachud and Dinesh Maheshwari was hearing an SLP against a November, 2021 order of the Calcutta High Court refusing bail...

The Supreme Court on Monday remarked that an open-ended investigation into an alleged larger conspiracy which supposedly may have ramifications on national security cannot alone be a ground to refuse bail and indefinitely incarcerate a person.

The bench of Justices D. Y. Chandrachud and Dinesh Maheshwari was hearing an SLP against a November, 2021 order of the Calcutta High Court refusing bail in a case under sections 120B/420 of the IPC and sections 7, 11, 12 of the Prevention of Corruption Act, 1988.
As recorded by the High Court, the case of the prosecution in nutshell is that a preliminary enquiry 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, Md Enamul Haque (SLP petitioner), 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 was 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 was 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 successful bidders like Md Enamul Haque, Anarul Sk, Golam Mustafa. Moreover, it was 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.
The petitioner was arrested on 06.11.2020 in connection with the aforesaid case and was in custody since then.
On Monday, Senior Advocate Mukul Rohatgi, for Haque, told the bench that the chargesheet and a supplementary chargesheet have been filed last year itself, that the co-accused, including a BSF commandant, have already been granted bail, while the SLP petitioner continues to be in jail for over a year even though the maximum imprisonment which he faces is 7 years.
ASG Aman Lekhi, for the CBI, told the bench that the SLP petitioner is part of a cattle smuggling racket across the Indo-Bangladesh border which also involves, BSF personnel, custom officers and the local police; that despite a look-out notice having been issued, he managed to enter into West Bengal from Bangladesh; and hence, the matter is an issue of national security and the investigation into a "larger conspiracy" is underway.
The bench observed, "We cannot understand this open-ended investigation. The co-accused have been granted bail. The petitioner has been in jail for 1 year and 2 months. This period was not enough to probe the larger conspiracy? How will indefinite detention help?"
The bench then proceeded to dictate its order, granting bail to the petitioner.
The High Court order
In the impugned order, the High Court recorded, "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", the High Court had further recorded.
The High Court then observed, "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."

Case Title: Md. Enamul Haque v. Central Bureau of Investigation

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