Mohd Hussain Molani v. National Investigation Agency

16. It is further stated that the aforesaid amounts received in the bank account of the appellant's wife have already been utilized by her from time to time in order to meet the educational expenses of her children, medical expenses of the ailing parents/in-laws, lawyer's fee and other family and miscellaneous expenses. It is stated that the appellant is the sole earning member of the family and it is, therefore, imperative that he be released on interim bail in order to arrange funds for his wife's surgery. It is denied that the account of "Molani Forex & Travel Private Limited" was closed in suspicious circumstances and is stated that that said company and its account was closed in compelling circumstances.

17. It is further denied that the Appellant's family is financially sound and is stated that the land admeasuring 1455 square feet at Ward No. 26, Kuchaman City is a piece of barren land and does not fetch any income, Crl. A. 370/2020 Page No. 14 of 31 rent or financial return to the appellant, his wife or his family. It is submitted that as far as the alleged amount of approx. Rs. 4 lacs 91 thousand is concerned, it is stated that the same was received over a period of 3 years as rental income from the plot bearing measuring 3189.75 square feet at Ward No. 16 of Kuchaman City. The said plot is jointly owned by the appellant's wife with Ms. Salma Bano, w/o Abdul Haqim Molani (the appellant's brother) and the aforesaid amount has already been used towards various expenses of the appellant, his wife and their family members.

18. It is further denied that the appellant has been non-cooperative during investigation. It is submitted that immediately after coming to know about the notices sent by the NIA Authorities to the Appellant's residence in India, the appellant had communicated his willingness to join investigation, by way of a letter, duly signed and sent from Dubai on 24.11.2018 and pursuant to the same, the appellant had voluntarily and willingly travelled back to India for the purpose of joining investigation, when he was arrested at the airport. The aforesaid act shows the bonafide of the appellant to return to India and join investigation being a law abiding citizen of this country. Crl. A. 370/2020 Page No. 15 of 31

19. We have considered the rival submissions. Perusal of the record reveals that wife of the appellant was being treated at Krishna Hospital, Kuchaman City earlier. The prescription of Krishna Hospital at Kuchaman City, Nagour, reflects that on 18th March, 2020, the hospital had asked her to be admitted for Laparoscopic myomectomy, which is considered to be a minimal invasive procedure, in which surgeon accesses and removes fibroids through several small abdominal incisions.

20. The record, however, reveals that thereafter, the family of the appellant had taken his wife to Unique Hospital, Vaishali Nagar, Jaipur where she was advised surgery and if need be, hysterectomy might also be done for the same ailment. There is a medical certificate issued by Unique Hospital, Jaipur dated 22nd June, 2020 also. According to the said certificate, the wife of the appellant is advised surgery to remove fibroid during the course of which hysterectomy might be required. There is another typed certificate on record which is also dated 22nd June, 2020 which says that she has fibroid in her uterus, for which she needs urgent surgery as soon as possible and she also might need hysterectomy. Crl. A. 370/2020 Page No. 16 of 31

21. Perusal of the record reveals that an independent expert Dr. L. Shyam Singh has stated in his report that at present the condition of the wife of the appellant is not serious and in case the bleeding is not stopped by medication, she can undergo a small procedure of D&C (Dilation & Curettage) if required.

22. The record, thus, reveals that as per the opinion of Government City Hospital, Kuchaman City, Rajasthan and opinion of Dr. L. Shyam Singh, Consultant (Gynae & Obst), the condition of the wife is not serious. Government City Hospital, Kuchaman City, Rajasthan has advised that wife of the appellant only requires Laparoscopic myomectomy. Dr. L. Shyam Singh has categorically opined that in case, the bleeding is not controlled by medical treatment, minor procedure of D&C (Dilation & Curettage) could be done. Even the Unique Hospital’s report dated 22nd June, 2020 shows that at this stage only surgery is being planned to remove the fibroid and during the course of which if need be hysterectomy may be required. The word used is ‘may’ and not ‘shall’. Thus, as per medical record prima facie at this stage, no major surgery is required for treating the appellant’s wife. Crl. A. 370/2020 Page No. 17 of 31

23. In view of the above medical report of Government City Hospital, Kuchaman City, Rajasthan and opinion of Dr. L. Shyam Singh, which do not suggest any major surgery, this Court is of the opinion that imminent presence of the appellant, who is alleged to be a Hawala operator and is involved in a serious offence of transfer of funds to terrorist organization like LeT, is not required at the time of suggested surgery and is, therefore, not entitled to interim bail. This Court is further of the opinion that there are other family members like father, mother, brothers and sisters of the wife of the appellant to look after appellant’s wife and can give consent for surgery. In the opinion of this Court, even the patient herself can give the consent as there is no bar regarding the same.

24. Learned counsel for the appellant has, however, argued that appellant has to arrange funds for surgery. However, the hospital discharge report of Unique Hospital nowhere mentions that wife of the appellant has been discharged for want of funds nor there is any such request made by the patient or her relatives to the hospital that operation cannot be performed because of paucity of funds. On the other hand, the record reveals that the family of the appellant has taken the wife of the appellant from one hospital to another i.e. first to a Government hospital Crl. A. 370/2020 Page No. 18 of 31 and thereafter to a Private one which prima facie shows that they are capable of taking care of the medical expenses of a private hospital and there is no paucity of funds. Besides the above facts, the Bank Accounts of the wife of the appellant reveals that family of the appellant are not living in poverty and therefore, in the opinion of this Court insufficiency of funds is not coming in the way of surgery of appellant’s wife and, therefore, release of appellant is not required on the ground that he has to arrange the funds for surgery, if at all it is to be done.

25. Reply filed by the National Investigating Agency further reveals that the wife of the appellant had visited Dubai twice after the arrest of the appellant. Though learned counsel for the appellant has submitted that this was because of residence permit/visa requirement. However, no such document has been placed on record to show that appellant’s wife had gone to the Dubai for the purpose of fulfilling conditions of residence permit/visa requirement. Thus, in the opinion of this Court, there is no satisfactory explanation regarding the visit of the appellant’s wife to Dubai even after the arrest of the appellant and those visits, therefore, belies the fact that there is an issue relating to arrangement of funds. Crl. A. 370/2020 Page No. 19 of 31

26. Furthermore, this Court is further of the opinion that even if the wife of the appellant has to undergo Laparoscopic myomectomy or D&C (Dilation & Curettage), as the case may be, no grounds for interim bail are made out since the allegations against the appellant are highly serious in nature. NIA has registered a case pertaining to terror funding by Falahi-lnsaniyat Foundation (FIF) a proscribed terrorist organization and a frontal organization of internationally designated and proscribed terrorist organizations Jamaat-ud-Dawah (JuD) and Lashkar-e-Taiba (LeT), at PS New Delhi vide FIR no. 20/2018 u/s 120-B & 121 of IPC and u/s 17, 18, 21, 38 & 40 of UA(P) Act on 02.07.2018. Despite notices u/s 160 Cr. PC issued to Mohd Hussain Molani @ Babloo on his native address 29, Gulzarpura, Ward no. 23, Kuchaman City, Nagaur, Rajasthan, he had not appeared and co-operated in the investigation. Thereafter, a Look Out Circular was issued against him and on his arrival at Jaipur Airport on 20th January, 2019, he was detained by Immigration Department and handed over to P.S. Sanganer, Jaipur City (East) and subsequently handed over to NIA and was arrested on 21st January, 2019 by NlA and upon finding sufficient prosecutable evidences against him, a charge-sheet u/s. 120-B of IPC and u/s 17, 21 of UA(P) Act has been filed against him on Crl. A. 370/2020 Page No. 20 of 31 18th July, 2019 before the learned Trial Court. The contents of chargesheet prima facie reveals that the appellant Mohammad Hussain Molani @ Babloo was in conspiracy with other accused persons, who were allegedly transferring hawala funds to India in the garb of charity/religious work. According to NIA, this was done to attract sympathizers and to create bases in the remote areas in India for funding terrorist activities. A system was being created vide which sleeper cells/ hide outs could be created at a later stage for carrying out act of terrorism at appropriate time or stage. Thus, keeping in view the gravity of offence as spelled out in charge-sheet, this court is not inclined to release the appellant on interim bail.

27. Learned counsel for the NIA in support of its contentions has relied upon the judgment of Hon’ble Apex Court titled National Investigation Agency vs. Zahoor Ahmad Shah Watali, (2009)5 SCC 1. In the said pronouncement, the Hon’ble Apex Court has set aside the order of Coordinate Bench of this Court dated 13.09.2018 granting bail to the accused. This was a case where a chargesheet was filed by NIA against the accused under Sections 120-B, 121 and 121-A of the Indian Penal Code (IPC) and under Sections 13, 16, 17, 18, 20, 38, 39 and 40 of the Crl. A. 370/2020 Page No. 21 of 31 Unlawful Activities (Prevention) Act, 1967. The accused had filed an application for bail before the District and Sessions Judge, Special Court (NIA), New Delhi, which was rejected vide order dated 8th June, 2018. The said order was, however, set aside by the Co-ordinate Bench of this Court in Criminal Appeal No.768/2018 vide order dated 13th September,

2018. The Co-ordinate Bench of this Court had observed that the NIA has not disputed that the appellant is a leading businessman in Kashmir. He runs a conglomerate of business entities and has been active in the context of the Indo−Pakistan trade and nothing has been shown to the Court from the charge-sheet that these trade activities were geared towards funding of terrorist activities, as alleged in the charge-sheet. Aggrieved by the order of Coordinate Bench of this Court, the NIA had gone in SLP before the Hon’ble Apex Court. The Hon’ble Apex Court held that High Court should have taken into account the totality of material and evidence referred in the charge-sheet and should not have discarded it as being inadmissible. It was also observed by the Hon’ble Apex Court that at the stage of considering the prayer for bail, the evidence is not required to be examined minutely but only an opinion is to be formed on the basis of the material before the Court. The Court at Crl. A. 370/2020 Page No. 22 of 31 that stage is only supposed to ascertain whether the allegations against the accused are prima facie true or not. If these are prima facie true, the bail ought not to be granted. The relevant paras of the said judgment runs as under;

10. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294: 1970 AC 1004: (1970) 2 WLR 1140 (HL)] (All ER p. 297g-h) Lord Reid said, “Lord Atkin's speech … is not to be treated as if it were a statutory definition. It will require qualification in new circumstances”. Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062: (1971) 2 All ER 1267] observed: “One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Crl. A. 370/2020 Page No. 28 of 31 Parliament.” And, in Herrington v.British Railways Board [(1972) 2 WLR 537: (1972) 1 All ER 749 (HL)] Lord Morris said: (All ER p. 761c) “There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.”

11. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. xxx xxx xxx Crl. A. 370/2020 Page No. 29 of 31 Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”” (Emphasis supplied)

33. Thus, the above judgments which are based upon their own peculiar facts and circumstances are distinguishable and does not help the learned counsel for the appellant in his submissions for interim bail.

34. Moreover, it is also a settled law that in case of bail, number of factors are required to be considered by Court. The Hon’ble Supreme Court in ‘State of Bihar & Anr. vs. Amit Kumar@ Bachcha Rai, (2017) 13 SCC 751’ held that there cannot be a straight jacket formula for consideration of grant of bail to the accused. The relevant para of the judgment runs as under:-

35. Thus, in the opinion of this Court, the present appeal has to be considered on the basis of its own facts and circumstances which have been discussed in detail in earlier part of this judgment and which prima facie show the serious nature of the offence and, therefore, no grounds for interim bail are made out. The Learned Trial Court has passed a very detailed and reasoned order discussing all the contentions raised by learned counsel for the appellant and there seems to be no infirmity, irregularity or illegality in the same which warrants interference by this Court. The appeal is, therefore, dismissed and stands disposed of accordingly. Crl. A. 370/2020 Page No. 31 of 31

36. This Court is, however, of the opinion that though no case for interim bail is made out, however in the interest of justice, if the wife of the appellant undergoes surgery, the appellant is allowed custody parole for six hours (excluding the time of journey) on the date of operation of his wife so that he can meet her and be with her at the time of operation whenever the date for surgery is fixed by the doctors, which shall be ensure that the police officers are deputed with him while the appellant is out of Jail.

37. The order be uploaded on the website of this court forthwith.

BRIJESH SETHI, J. J.R. MIDHA, J.