ORDER
Cyriac Joseph, J.
1. This Petition has been filed under Section 439 of the Criminal Procedure Code for grant of bail to the Petitioner Mr. Lambort Kroger, a German National who is the accused in the Criminal Complaint filed by the Enforcement Officer, Enforcement Directorate (Foreign Exchange Regulation Act), Ministry of Finance, Government of India, under Section 56 read with Section 61(2)(ii) of the Foreign Exchange Regulation Act, 1973 (FERA) for offences committed under Sections 19, 29(1)(b), read with Section 68 and Section 29(1)(a) and 30(1) of the said Act.
2. The petitioner was arrested on 8th July, 1999. Though the petitioner filed an application for bail in the Court of the Additional Chief Metropolitan Magistrate, it was dismissed on 30th July, 1999 observing that the investigation was at a crucial stage and that if the petitioner was released on bail there was every possibility of the investigation being hampered and the evidence being tampered with. Later on the petitioner filed an application for bail in the Court of the Additional Sessions Judge and it was dismissed on 21st August, 1999 pointing out that the accused was involved in a serious economic offence and that the investigation was at the initial stage. Therefore, the above mentioned Criminal Complaint was filed in the Court of the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 4th September, 1999.
3. According to the Criminal Complaint filed by the Enforcement Directorate against the Petitioner, the business premises of M/s. Maple Leaf Trading International Pvt. Ltd. at S-485, GK-II, New Delhi were searched by the officers of the Enforcement Directorate on 2nd July, 1999 under Section 37 of FERA 1973 and incriminating documents and articles were recovered and seized. During the course of investigation, it emerged that Mr. Cliff Roy, a British Citizen and Mr. Lambert Kroger, a German National discussed certain design and plan for business/trading in India and accordingly on 15th April, 1998, the company, M/s. Maple Leaf Trading International Pvt, Ltd., was incorporated at New Delhi. Initially the directors of the company were M/s Anil Bhalla, Rajesh Sethi, B.S. Jafa and Rahul Krishna. On 15.4.1998 itself a resolution was passed appointing Mr. Cliff Roy also as a director of the company. Later on M/s. Anil Bhalla, Rajesh Sethi, Rahul Krishna and B.S. Jafa resigned and in their place Mr. Lambert Kroger (petitioner herein) and Mr. Paul Singh Clare, another British Citizen were appointed as Directors. Later Mr. Lambert Kroger was appointed as Managing Director of the Company. Thus though the company was incorporated in India by Indians, it was handed over finally in the hands of M/s. Cliff Roy. Paul Singh Clare and Lambert Kroger. One M/s. Picadily Invest AG of Switzerland also invested in the Company to the tune of Rs. 13,30.500/- and Mr. Cliff Roy represented the said Swiss Company in India under a Special Power of Attorney. Thus 51% shares of the Company were allotted to M/s. Picadily Invest AG of Switzerland on 28th May, 1998. M/s. Maple Leaf Trading International Pvt. Ltd. filed an application to the Reserve Bank of India on 21st May, 1998 in the format of FC (RBI) to avail the facility of Simplified Procedure of Automatic Route of Approval vide A.D. (M.A.) series circular No. 2 dated 20th January, 1998 and notification No. FERA 180/98- RB, dated 13th January, 1998 issued by the RBI. In the said application the Company chose the Services Sector describing its activity as ‘Business Management Consultancy for Trading Marketing and Selling of Goods and Services’. On the basis of the said application the Reserve Bank of India allotted Registration Number to the Company on 29th June, 1998. Even though the above mentioned application to the Reserve Bank of India was filed only on 21st May, 1998, the Company had made its first presentation and started gold coin trading activity on 17th May, 1998. Even though the Registration Number was allotted to the Company by the Reserve Bank of India only on 29th June, 1998, the Company had signed the first contract for the trading in gold coins on 27th May, 1998. The actual activity of the Company i.e. the trading in Maple Leaf Gold Coins was found to be completely different and separate from the activity stated in the application dated 21st May, 1998. It was also found to be out of the list of Industries/Items mentioned in Annexure -III of the RBI Notification No. FERA 180/98-RB dated 13th January, 1998. It is alleged in the Criminal Complaint that during the investigation it was revealed that the accused Lambert Kroger came to India in December, 1997 on Business Visa for the trading of Maple Leaf Gold Coins and, as preplanned, joined the Company as Director and finally as Managing Director for the said trading activity and took control of the Company. It is further alleged that the accused failed to produce any general or special permission of the RBI in his name for carrying on trading activities in India. It is also alleged that the accused, a foreign national, failed to produce any prior permission of the Reserve Bank of India for opening a personal account in ABN AMRO Bank, New Delhi bearing No. 6414338 with repatriation facility. This showed his intention for remittance outside India out of any money receivable/received by him in India by reason of such unauthorised trading in maple leaf gold coins either in the colour of salary or commission. It is mentioned that the other two Directors Mr. Cliff Roy and Mr. Paul Singh Clare have already remitted Rs. 9,00,000/- and Rs. 18,00,000/- respectively outside India from their personal accounts. According to the complaint, the Company was engaged in the trading of maple leaf gold coins under a marketing plan and scheme wherein the Company has entered into written agreement for contract of sale with the general public at large. The only basis rule of the scheme was to first invest your own money and then keep enrolling new members for return in the form of gold coins of certain value in Indian currency after fulfilllment of the terms and conditions of the agreement like money circulation schemes. It is stated that trading in maple leaf gold coins is different and even out of the purview of permissible activities as per notification No. FERA 180/98-RB dated 13th January, 1998 issued in pursuance of clause (a) and clause (d) of sub-Section (1) of Section 19 read with clause (b) of Sub-Section (1) of Section 29 of FERA 1973. According the complaint, the Company has contravened the provisions of Section 19(1)(a) and (d) and Section 29(1)(b) of FERA 1973 read with Section 68 of FERA 1973. It is further alleged that the accused was engaged in the trading of maple leaf gold coins in the name and style of the company without any general or special permission of RBI and was maintaining a Bank Account in India with repatriation facility to outside India without any prior permission of the RBI and thus contravened the provisions of Section 29(1)(a) and Section 30(1) of FERA 1973. It is also stated in the complaint that further investigations in respect of large number of transactions running in crores of rupees done by the Company, the accused and the other Directors in relation to the trading in maple leaf gold coins are being carried out by the Enforcement Directorate under the provisions of FERA 1973 and that two of the Directors namely Mr. Cliff Roy and Mr. Paul Singh Clare are reported to be beyond the territory of India and that examination of various persons and witnesses are still in process. According to the complaint the accused is involved not only in mere breach of permissions or conditions of the Reserve Bank of India but also in the contravention of the various provisions of FERA 1973. It is stated that during the course of investigation opportunity notices as required by the proviso to Section 61(2)(ii) of FERA 1973, were issued on 25th August, 1999 to the Company, Mr. Cliff Roy, Mr. Paul Singh Clare and Mr. Lambert Kroger to state in writing within seven days of receipt of the notice whether they had permission of RBI for trading in maple leaf gold coins etc. as per provisions of FERA 1973. They were also required to furnish copies of such permission, if any,. The said opportunity notice was served upon the accused in judicial custody at Tihar Jail No. 4 in person on 25th August, 1999. But no reply to the said notice was received till the time of filing the complaint on 4th September, 1999. It is also stated in the complaint that filing of further complaint (s) would be considered after the investigations were completed in the case.
4. According to the averments in this petition the company M/s. Maple Leaf International Trading (P) Ltd. was incorporated in India on 21.5.1998. The company applied to the Reserve Bank of India for approval of foreign investment under Automatic Route as per the regulations of the Government of India. In para (viii) of the FC (RBI) Form, it was mentioned that the company was to do business of ‘Business Management Consultancy for Trading, Marketing and selling of goods and services.’ In each column a separate activity can be written. In the Policy different activities are classified and identified by allotted NIC Codes. Some activities and services are not classified and no NIC Code is allotted in the Policy. Such activity or service is thus required to be written in the form as it is, without the NIC Code. The company applied to conduct activity of business management consultancy and also trading, marketing and selling of goods and services. In the form, while mentioning the complete activity of business management consultancy for trading, marketing and selling of goods and services, on the side where NIC Code is required to be mentioned only NIC Code 893 was recorded as NIC Code available in the Policy was only for Business marketing consultancy. The application of the company was approved and the Reserve Bank of India granted a registration to the company as per communication dated 29.6.1998. On 2.7.1999 the officers of the Enforcement Directorate searched the Office premises of the company and seized the records. Since then the petitioner was meticulously joining the proceedings and attending the office of the respondent department. Suddenly on 8.7.99 the petitioner was arrested for the alleged violation of Sections 9,19,29 and 30 of FERA, 1973. The allegations made against the petitioner are misconceived and untenable. It is stated that in the application submitted to the Reserve Bank of India the company had clearly mentioned the nature of the activities of the company, namely, the activity of business management consultancy and also the activity of trading and marketing and selling of goods and services and hence there is no reason for the respondent to allege that the activity of the company, namely, trading in Maple Leaf Gold coins is without the permission of the Reserve Bank of India. According to the petitioner, the company sells domestically purchased gold through a system of marketing called multi level marketing. The person joining the scheme has an option either to purchase gold against payment of Rs. 60,000/- or to pay only Rs. 15,000/- with the option to earn commission for further contracts for purchase of gold through him in a gold programme spread only to three phases. There is no restraint of time as to within how much period the person concerned can earn the balance commission and thereby became entitled to receive the gold worth Rs. 49,300/- in the marketing plan phase programme. It is also contended that the allegations made against the petitioner do not even fit into the provisions of the FERA alleged to have been contravened by him. It is contended that the petitioner and his company are doing business within the purview of the general permission granted by the Reserve Bank of India, that payment of commission by the company to the directors and other persons is made through the bank and the same is permitted by the Reserve Bank of India and that the petitioner as a foreigner has a general permission of the Reserve Bank of India to be a director and conduct business in India. It is also contended that the petitioner has not committed any offence under the FERA.
5. The main bone of contention between the petitioner and the respondent is the effect of the allotment of a registration number to M/s. Maple Leaf International Trading (P) Ltd. by the Reserve Bank of India for foreign financial collaboration pursuant to the company’s application dated 21.5.1998. According to the petitioner the said allotment of registration number amounted to approval for foreign investment and technology transfer under the Automatic Route of Reserve Bank of India in the field of Business Management Consultancy and also in the field of trading, marketing and selling of goods and services. It is contended that in its application dated 21.5.1998 the company had applied for approval of foreign investment and technology transfer under the Automatic Route of Reserve Bank of India in the field of Business Management Consultancy and also in the field of trading, marketing and selling of goods and services and hence the approval granted by the Reserve Bank of India was applicable to both fields. But according to the respondent, in its application dated 21.5.1998 in the column for item (s) of manufacture proposed to be undertaken with foreign collaboration, the company had written ‘BUSINESS MANAGEMENT CONSULTANCY FOR TRADING, MARKETING AN SELLING OF GOODS AND SERVICES’. This description of the activity was shown against NIC Code 893. It is pointed out that NIC Code 893 relates to ‘Business and Management Consultancy Activities’ and that NIC Code 893.2 relates to ‘Market Research Services’. It is contended that in the company’s application only NIC Code 893 was mentioned and that the activity was described as Business Management consultancy for trading, marketing and selling of goods and services and therefore the permission granted by the Reserve Bank of India was only in respect of Business management consultancy in the areas of trading, marketing and selling of goods and services. According to the respondent, there was no approval for any trading activity. In support of this contention, learned counsel for the respondent invited my attention to a letter dated 8th June, 1999 received by the Director, Enforcement Directorate from the Reserve Bank of India, in which it is clearly stated that the company has not got the RBI permission for the trading activity in question and that the company is misleading the public. The learned counsel for the respondent submitted that the manner in which the proposed activity of the company was described in the application dated 21.5.1998 made it impossible for any reasonable person to understand that the application was also in respect of any trading activity. Having perused the photocopy of the application dated 21.5.1998 of the company and the above mentioned letter dated 8th June, 1999 of the Reserve Bank of India, prima facie I find force in the contention of the respondent. However, it is a matter for the trial court to decide and it is not necessary to express any final opinion in the matter in these proceedings.
6. Learned counsel for the petitioner contended that the offences alleged to have been committed by the petitioner are only offences falling under Section 56 of FERA which are punishable with imprisonment for a term which may extend to three years or with fine or with both. According to the learned counsel, since the sentence of imprisonment is not mandatory for offences falling under Section 56(1)(ii) of FERA and even in the case of imprisonment the maximum term can be only three years there is no justification for keeping the petitioner in judicial custody and therefore he should be released on bail. The above contention of the learned counsel for the petitioner was strongly disputed by the learned counsel for the respondent. According to the learned counsel for the respondent, the offences alleged against the petitioner fall under Section 56(1)(i) of FERA which are punishable with imprisonment for a term which shall not be less than six months but it may extend to seven years and with fine. According to the learned counsel, the amount or value involved in the offence exceeds Rs. 1 lakh and hence Section 56(1)(i) is attracted in this case. In view of the nature of the allegations contained in the complaint it is not possible at this stage to decide whether the amount or value involved in the offence exceeds Rs. 1 lakh or not. The possibility of the amount or value exceeding Rs. 1 lakh cannot be ruled out at this stage. Hence for the purpose of this petition I shall presume that the alleged offences fall under Section 56 (1)(i) of FERA.
7. It was further contended by the learned counsel for the petitioner that no offence under Section 19(1)(d) of FERA was made out since there was no material to show that the petitioner transferred any security to a person resident outside India. This argument was countered by the learned counsel for the respondent pointing out that as per the definition of ‘security’ contained in Section 2(u) of FERA, ‘security’ means ‘shares’ and that the petitioner’s company issued 51 % shares to M/s PICADELLY Invest AG of Switzerland without general or special permission of the Reserve Bank of India. In answer to this learned counsel for the petitioner pointed out that the said 51 % shares were issued to M/s PICADELLY Invest AG on 25.9.98 whereas the petitioner became a director of the company only on 31.10.1998 and the Managing Director only on 1.4.1999. The contention of the learned counsel is that the petitioner cannot be held responsible or liable for any action of the company prior to his becoming a director or Managing Director of the company. Prima facie there is some force in the contention but the question should be left to be decided by the trial court.
8. It was then contended by the learned counsel for the petitioner that no offence under Section 29(1)(b) of FERA has been made out since the petitioner has not acquired any shares of the company (M/s. Maple Leaf Trading International (P) Ltd. ). Learned counsel for the respondent did not seriously contest the above argument. However, he pointed out that since the petitioner carried on in India the activity of a trading nature without obtaining the permission of the Reserve Bank of India under Section 28 of FERA, the petitioner clearly committed an offence under Section 29 (1)(a) of FERA which is punishable under Section 56(1)(i) of the said Act. But learned counsel for the petitioner submitted that even according to the criminal complaint filed by the respondent, the petitioner in his personal capacity did not carry on any activity of a trading nature and the petitioner has been implicated in his capacity of Director/Managing director of the company which carried on such activity. Learned counsel further submitted that the prohibition under Section 29(1) of FERA does not apply to a company incorporated under any law in force in India. The contention is that the petitioner’s company was incorporated under the law in force in India and hence the prohibition under Section 29(1) does not apply to the said company and therefore the petitioner cannot be said to have committed an offence under Section 29(1) even in his capacity as Director/Managing Director of the company. Though this contention deserves serious consideration, it is not necessary to express any opinion at this stage while considering the application for bail. Learned counsel for the petitioner also pointed out that there is no clear averment in the complaint that the petitioner was in charge of and responsible for the conduct of the business of the company and hence the petitioner cannot be implicated with the help of Section 68 of FERA. But learned counsel for the respondent submitted that in the case of the Managing Director of a company, such clear averments are not necessary in view of the very duties and functions of a managing director.
9. Learned counsel for the petitioner further contended that no offence under Section 30(1) FERA was made out against the petitioner since no foreign exchange ws remitted by him outside India. But according to the learned counsel for the respondent actual remittance of foreign exchange outside India is not necessary to constitute an offence under Section 31 of FERA. As per Section 30(1) of FERA if a national of a foreign State, without the previous permission of the Reserve Bank of India, practises any profession or carry on any occupation, trade or business in India in a case where such national desires to acquire any foreign exchange (such of foreign exchange being intended for remittance outside India) out of any moneys received by him in India by reason of the practicing of such profession or the carrying on of such occupation, trade or business as the case may be, he commits an offence under Section 30(1) of FERA. Learned counsel for the respondent pointed out that the petitioner is admittedly a German national, that he has been the Managing Director of the company, that the company carried on a trading activity, that the petitioner had received moneys as Managing Director of the company and that he had opened an account in ABN AMRO Bank with repatriation facility. According to the learned counsel for opening of an account in ABN AMRO Bank with repatriation facility is the clear proof for the petitioner’s intention to make remittance outside India. In my view these are questions to be decided by the trial court and not by this Court in these proceedings.
10. Learned counsel for the petitioner submitted that when the criminal complaint was filed in the Court the investigation in this case had not been completed. He pointed out that according to the paragraph (6) of the criminal complaint, ‘filing of further complaint (s) would be considered after the investigations are completed in this case.” According to the learned counsel, the complaint was hurriedly filed on the 58th day after the arrest of the petitioner with a view to deny bail to him on the expiry of a period of sixty days. This allegation was denied by the learned counsel for the respondent who submitted that the investigation in respect of the petitioner had been completed and that the reference to filing of further complaint (s) was in respect of Mr. Cliff Roy and Mr. Paul Singh Clare who were reportedly out of India.
11. Learned counsel for the petitioner further contended that the petitioner was not given reasonable opportunity to show that he had the necessary permission of the Reserve Bank of India or that no permission was required under the law to carry on the activities in question. He pointed out that the notice under Section 61(2)(ii) of FERA was served on the petitioner on 25.8.1999 when he was in judicial custody and hence he did not get sufficient opportunity to answer to the notice. According to the learned counsel for the respondent, sufficient and reasonable opportunity was given to the petitioner by issuing a notice as required under Section 61(2)(ii) of FERA but he could not show that he had the necessary permission of the Reserve Bank of India or that such permission was not required and hence the respondent was justified in filing the criminal complaint in the Court.
12. It was then argued by the learned counsel for the petitioner that whatever be the merits of his contention that the petitioner did not vilolate any provision of FERA. 1973. there was no justification for keeping the petitioner in judicial custody for any further period. He pointed out that even according to the learned counsel for the respondent the investigation against the petitioner, had been completed before filing the criminal complaint. He also pointed out that the evidence in the case against the petitioner is based on the articles and documents which have already been seized by the respondent. He submitted that in the nature of this case there is no possibility of the petitioner’s tampering with evidence if he is released on bail. He also submitted that the petitioner has no intention to flee from justice and that the petitioner is willing to face the trial. He pointed out that though the petitioner is a foreign national his passport is already with the respondent and hence there need not be any apprehension that the petitioner might leave the country if he is released on bail. However, learned counsel for the respondent strongly opposed the prayer for bail, stating that the petitioner is alleged to have committed a serious economic offence punishable with imprisonment for a term upto 7 years and with fine and that the petitioner, being a foreing national., is likely to flee from justice. Learned counsel pointed out that many foreigners who were granted bail by the courts in Delhi are not available for facing trial and that this fact has been brought to the notice of this court in an affidavit filed in Crl. M. (M) No. 1817/99. Learned counsel further pointed out that in this case itself Mr. Cliff Roy and Mr. Paul Singh Clare are absconding and are believed to have left the country as a result of which investigation could not be completed and complaint could not be filed against them. Learned counsel expressed the apprehension that investigation against them will be hampered if the petitioner is released on bail.
13. While explaining the power of the Court to grant bail under the provisions of the Criminal procedure code 1898, the Supreme Court in The State Vs. Captain Jagjit Singh held that whenever an application for bail is made to a court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted without more ado. But if the offence is not bailable. further consideration will arise and the Court will have to decide the question of grant of bail in the light of those further considerations such as nature and seriousness of the offence., the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, a reasonable appre hension of witnesses being tampered with, the larger interest of the public or the State and similar other considerations which arise. The Supreme Court also held that even though the powers of the High court in the matter of granting bail are very wide, various considerations such as those indicated above have to be taken into account before bail is granted in a nonbailable offence.
14. In Gurcharan Singh & others Vs. State, reported in AIR 1978 Supreme Court 179, the Supreme Court considered the power of the Court under Section 437 of the code of Criminal Procedure 1974 (the new code) to grant bail in cases involving nonbailable offences and held that in all nonbailable cases except cases relating to offences punishable with death or imprisonment for life. Judicial discretion would always be exercised by the Court in favour of granting bail subject to sub-section (3) of Section 437 Criminal Procedure Code with regard to imposition of conditions. If necessary. The Supreme Court also held that unless exceptional circumstances were brought to the notice of the court which might defeat proper investigation and a fair trial, the court would not decline to grant bail to a person who was not accused of an offence punishable with death or imprisonment for life. The Supreme Court pointed out that Section 439(1) of the new Code confers special powers on the High Court or the Court of Session in respect of bail and that unlike under section 437(1) there is no ban imposed under Section 439(1) against granting of bail by the High Court or the court of Session to persons accused of an offence punishable with death or imprisonment for life. However, it was clarified that the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting bail under Section 439. It was also held that the overriding consideration in granting bail are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood of the accused fleeing from justice; the likelihood of repeating the offence; the likehood of jeopardising his own life being faced with a grim prospects of possible conviction in the case; the likelihood of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out. In paragraph 29 of the Judgment in the above case, the Supreme Court has pointed out that the two paramount considerations are the likelihood of the accused fleeing from justice and his tampering with prosecution evidence and that they relate to ensuring a fair trial of the case in a court of justice. According to the Supreme Court, it is essential that due and proper weight should be bestowed on these two factors apart from others. However, the Supreme Court also said that there could not be an inexorable formula in the matter of granting bail and that the facts and circumstance of each case would govern the exercise of judicial discretion in granting or cancelling bail. The Supreme Court referred to the general observations made by the Supreme Court in The State Vs. Captain Jagjit Singh (Supra) with regard to the principles that should govern in granting bail in a non-bailable case under the provisions of Criminal Procedure Code 1898 and opined that those observations equally applied to a case under Section 439 of the new code and that the legal position was not different under the new code. Thus the principles laid down in The State Vs. Captain Jagjit Singh were held to be applicable for grant of bail under Section 439 of the new code also.
15. In Gudikanti Narasimhulu and others Vs. Public Prosecutor, , V.R. Krishna Iyer, J. observed that “Bail or jail?” _ at the pretrial or postconviction stage _ largely hinged on judicial discretion. The learned Judge held that personal liberty was too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it was a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. It was further held that deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the constitution. The learned Judge further observed that the object to keep a person in judicial custody pending trial or disposal of an appeal, was often forgotten and quoted Lord Russel who had said that bail was not to be withheld as a punishment and that the requirements as to bail were merely to secure the attendance of the prisoner at trial. According to the learned Judge. the principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. After holding that it makes sense to assume that a man on bail has a better chance to prepare and present his case than one remanded in custody the learned Judge observed that if public justice is to be promoted mechanical detention should be demoted.
16. The principles laid down by the Supreme Court in Gurcharan Singh and other Vs. State (supra) were followed by the Supreme Court in Miss Harsh Sawhney Vs. Union Territory and in Mohan Singh Vs. Union Territory, Chandigarh .
17. In Gurbaksh Singh Sibbia etc. Vs. The State of Punjab, the Supreme Court has observed that Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. The Court has also observed that in which case bail should be granted and in which case it should be refused is a matter of discretion. The court found it interesting to note that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Vs. King Emperor , that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. The Court also referred to the observation of the Allahabad High Court in K.N. Joglekar Vs. Emperor , that section 498 of the old code which corresponds to Section 439 of the new code, conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. The Allahabad High Court had also observed that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by section 498 and that the only principle which was established was that the discretion should be exercised judiciously. The Supreme Court referred also to the decision of the Allahabad High Court in Emperor Vs. H.L. Hutohinson , wherein it was observed that the principle to be deduced from the various sections in the Cr. P.C. was that grant of bail is the rule and refusal is the exception. It was also observed therein that as a presumably innocent person, the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. It was further observed by the High Court that an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. The Supreme Court apparently approved the above views and observations.
18. Having considered the facts and circumstances of his case in the light of the legal position emerging from the above mentioned judgments of the Supreme Court, I do not find any justification to refuse bail to the petitioner now. The petitioner has raised serious contentions to show that the alleged acts of the petitioner did not constitute violation of any of the provisions in the FERA and that he has not committed any offence under FERA. Even if the petitioner is found guilty of the offences alleged against him, he can be punished with imprisonment for only a maximum terms of 7 years. The petitioner has been in custody since 8th July , 1999. The investigation against the petitioner had been completed and the criminal complaint against him was filed in Court on 4th September, 1999. The business premises of the company were searched on 10th July, 1999 and incriminating documents and articles were recovered and seized. The main evidence in this case is based on articles and documents which have already been seized by the respondent. I do not find any reason to apprehend that the petitioner will be able to tamper with evidence if he is released on bail. Admittedly the petitioner ‘s passport is with the respondent and ordinarily the petitioner cannot leave the country without the passport. Though the possibility of fleeing from trial may be more in the case of foreign national. It cannot be said that an accused cannot be granted bail merely because he is a foreign national. There is no law which authorises or permits discrimination between a foreign national and an Indian national in the matter of granting bail what is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions to ensure that the accused will be available for facing trial. According to the respondent Mr. Cliff Roy and Mr. Paul Singh Clare are absconding and are believed to be out of the country and the investigation could not be completed and complaint could not be filed against them. The fact that Mr. Cliff Roy and Mr. Paul Singh Clare have absconded by itself cannot be a ground for detaining the petitioner in prison indefinitely. More than seven months have passed after the business premises of the company were searched and the petitioner was arrested. The respondent had enough time to conduct investigation against the other offenders and to launch prosecution against them also. It has not been explained how the continued detention of the petitioner will help to book the absconding offenders. In these circumstances and having regard to the entire facts of this case I am inclined to direct release of the petitioner on bail subject to certain conditions.
19. Hence, it is directed that the petitioner shall be released on bail subject to the following conditions :
1. The petitioner shall deposit a sum of Rs. 50,000/- in the Court of the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, as security;
2. The petitioner shall produce two local sureties in the sum of Rs. 50,000/- each to the satisfaction of the learned Additional Chief Metropolitan Magistrate.
3. During the period of trial of the case, the petitioner’s passport shall remain with the respondent unless otherwise directed by the trial court.
4. The petitioner shall not leave the limits of N.C.T. of Delhi without the prior permission of the Trial Court.
5. The petitioner shall report to the Enforcement Officer, Enforcement Directorate, New Delhi on every Monday at 11.00 am.
The petition stands disposed of in the above terms.