Santiago Martin v. Directorate of Enforcement

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 1[ST] DAY OF APRIL 2022 / 11TH CHAITHRA, 1944** **CRL.MC NO. 5569 OF 2021** **AGAINST THE ORDER DATED 18.10.2021 IN CRL.M.P. NO.1350/2021 IN SC** **533/2018 BEFORE THE SPECIAL JUDGE (SPE/CBI) -I (SPECIAL COURT UNDER THE PREVENTION OF MONEY LAUNDERING ACT, 2002) ERNAKULAM** ## **PETITIONER/ACCUSED:** **SANTIAGO MARTIN AGED 59 YEARS S/O MR. SANTIAGO R/O 135/1, THIRUVALLUVAR STREET, VELLAIKINAR ROAD,G.N. MILLS POST, COIMBATORE-641 029, TAMIL NADU, INDIA.** **BY ADVS.A.KUMAR P.J.ANILKUMAR G.MINI(1748) P.S.SREE PRASAD JOB ABRAHAM AJAY V.ANAND** ## **RESPONDENT/RESPONDENT:** **1 DIRECTORATE OF ENFORCEMENT GOVERNMENT OF INDIA, COCHIN ZONAL OFFICE, KANOOS CASTLE, MULASSERY CANAL ROAD WEST, COCHIN-682 011, KERALA, INDIA.** - **2 * ADDL. R2 IS IMPLEADED** **THE PASSPORT OFFICER, REGIONAL PASSPORT OFFICE, 1ST FLOOR, COMMERCIAL COMPLEX, OPP. THANDUMARIAMMAN KOVIL, AVINASHI ROAD, COIMBATORE-641018.** *** ADDITIONAL R2 IS IMPLEADED AS PER ORDER DATED 20/12/2021 IN CRL. MA 3/2021 IN CRL. MC.5569/2021** **BY SRI. S.MANU, ASGI BY SRI. SUVIN R. MENON, CGC** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.02.2022, THE COURT ON 01.04.2022 PASSED THE FOLLOWING:** Crl.M.C.No.5569 OF 2021 2 ## **ORDER** Petitioner is the first accused in S.C. No. 533/2018 on the file of the Special Court under the Prevention of Money-Laundering Act, 2002 hereinafter referred to as the Act, which is also the Special Court for the trial of SPE/CBI cases. The said Sessions Case was taken on file on a complaint preferred by the first respondent alleging offence under Section 3 read with 4 of the Act. The first respondent had registered an ECIR on 19.08.2014 on the basis of the predicate offence in C.C. No. 218/2015 pending before the Chief Judicial Magistrate's Court, Ernakulam where offence under Section 420 read with 120B of the Indian Penal Code is alleged against the petitioner and others. Petitioner has a passport. When he was granted bail, the passport was directed to be surrendered which was later returned to him. While so, he had moved an application before the Special Court seeking permission to renew the passport for a period of three years. After evaluating the situation, by Annexure A1 order dated 05.10.2018, the petitioner was allowed to renew the passport for three years. Crl.M.C.No.5569 OF 2021 3 Accordingly, he renewed the passport and the period of the passport did expire on 08.11.2021. Meanwhile, he filed Annexure A2 application before the Special Court for renewing the passport for a further period of five years. The application was strongly opposed by the first respondent. Annexure A4 is the objection to which Annexure A5 reply was given by the petitioner. After hearing counsel on both sides and considering rival contentions, by Annexure A9 order, the learned Special Judge dismissed the application with a rider that the petitioner will be at liberty to file fresh petition after appearing before the Directorate of Enforcement in response to the summons issued to him as part of the ongoing further investigation proceedings. 2. I heard Sri. S Sreekumar, the learned Senior Counsel for the petitioner and Sri. Suvin R. Menon, the learned Central Government Counsel for the respondents. 3. The learned Senior Counsel pointed out that by Annexure A1 order he was permitted to renew the passport for a period of three years which expired on 08.11.2021. But before the expiry, he moved the Special Court seeking Crl.M.C.No.5569 OF 2021 4 permission to renew the passport. Referring to Annexure A3 order of the Chief Judicial Magistrate dated 31.08.2021 in C.C. No. 218/2015 which is in respect of the predicate offence, the Chief Judicial Magistrate has permitted him to renew the passport for a period of two years. The petitioner had received summons from the first respondent. Responding the same, necessary documents were produced before the first respondent by the authorised agent of the petitioner; he had produced documents; the statement of the authorised agent was also recorded and still the objection in renewing his passport is not justifiable. According to the learned counsel, Annexure A9 order is violative of the parameters laid down by this Court as well as the Apex Court in the matter of issuing/renewing passport to an offender. Petitioner has business interests both inside and outside the country and for protecting his interests, he has to undertake journey abroad for which passport is required to be renewed. Pursuant to Annexure A1 order, he had undertaken journeys and promptly returned to the country. He has his permanent place of abode in Coimbatore, has large Crl.M.C.No.5569 OF 2021 5 business interests all over the country and there is no basis in the allegation that he would abscond from the country and flee from justice. He has never violated the bail conditions. He is paying huge amount towards income tax and takes care in filing income tax returns regularly and promptly. Therefore, there is absolutely no basis in dismissing his application for renewing the passport. The learned Senior Counsel also relied on the decisions reported in **Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi and Others [AIR 1967 SC 1836]** , **Suresh Nanda v. Central Bureau of Investigation [(2008) 3 SCC 674]** , **Thadevoose Sebastian v. Regional Passport Office and Another [2021 (5) KHC 625]** and **Ashok Giri v. State of Tamil Nadu and Others [2018 SCC Online Madras 857]** etc. 4. On the other hand, the learned Central Government Counsel for the respondents strongly opposed the application. According to him, the petitioner has not come with clean hands. Even though repeated summonses were issued to him, as part of investigation of the ongoing further investigation Crl.M.C.No.5569 OF 2021 6 conducted under the Act, interrogation of the petitioner in person is absolutely essential, but he has evaded such summonses and wanted the first respondent to satisfy with the statement given by the representative and also the documents sent by him. On his own admission, he has business interests abroad. Serious allegations involving large quantum of money is under the investigation of the first respondent. In order to complete the investigation, the petitioner has to be interrogated in person. The fact that the Chief Judicial Magistrate, in the charge sheet laid by the CBI has granted him permission to renew the passport for two years cannot guide the present proceedings. For collecting further evidence in the matter, the statement of the petitioner has to be recorded and he is evading the same under different pretexts. 5. Before going into the rival contentions, it is appropriate to set out the undisputed facts first. Petitioner is the prime accused in ECAR/04/KCZO/2014 registered by the first respondent against the petitioner and others. It is the common case that on the basis of a notification issued under Section 6 of Crl.M.C.No.5569 OF 2021 7 the Delhi Special Police Establishment Act, 1946 by the State of Kerala, 32 FIRs were registered against the petitioner by the CBI. Out of 32, 23 cases were closed after investigation. In seven cases, a consolidated charge sheet was laid before the Chief Judicial Magistrate's Court, Ernakulam alleging offence under Section 420 read with 120B of the IPC which is pending before the Court as C.C. No. 218/2015. It is in respect of the predicate offence. On the basis of the consolidated charge sheet, the said ECIR was registered and on conclusion of investigation a complaint has been laid before the Special Court as S.C. No. 533/2018 alleging offence under Section 3 read with 4 of the Act. In the remaining two cases, it is submitted that for want of sanction by the Bhutan Government, no investigation has taken place. While so, petitioner moved an application seeking permission before the Special Court for renewing the passport for three years which was allowed by Annexure A1 order and the passport was renewed by him. Period of three years has expired on 08.11.2021. Before its expiry, he moved Annexure A2 application for renewing the Crl.M.C.No.5569 OF 2021 8 passport for a further period of five years. It is true, meanwhile, he moved before the Chief Judicial Magistrate as well for renewing the passport which was allowed for two years. According to him, he has to go abroad for attending his business meetings. He further stated that his permanent place of residence is at Coimbatore, his wife and children are there, he has numerous business establishments and commercials complexes deriving rent within the country, he is a regular income tax payee, substantial amounts are being paid towards tax, he will not stay abroad permanently, his intention is to visit foreign countries temporarily for his business purposes and that was how he sought renewal of the passport for five years in his application dated 10.08.2021. 6. He had moved a similar application before the Chief Judicial Magistrate Court also, from where, as stated earlier, his passport was allowed to be renewed for a period of two years. However, the learned Special Judge by Annexure A9 order, after weighing with various considerations, dismissed the application. Predominantly, the learned Special Judge took into Crl.M.C.No.5569 OF 2021 9 consideration the fact that despite the fact that he was summoned by the first respondent for his personal appearance, he did not turn up, which according to the learned Judge militates against his claim that he is co-operating with the investigation. The learned Judge also had, during the course of hearing the application, ascertained whether the petitioner had turned up on subsequent occasions. But the report was against him. Thus ultimately, the application was dismissed. 7. After considering the rival contentions and materials, I have no doubt that there is absolutely nothing to interfere with the order under challenge. It is true that a complaint has already been laid against the petitioner and others. It is pending as S.C. No. 533/2018 before the Special Court. Meanwhile, Enforcement Directorate has undertaken a further investigation, on the basis of the subsequent revelations that large sum of money was laundered by the petitioner. The estimation of the first respondent is that he is guilty of laundering Rs. 910 crores including sum of Rs.258.52 crores for which three provisional attachment orders were issued. Crl.M.C.No.5569 OF 2021 10 Now the further investigation by the Enforcement Directorate is in progress. As part of the further investigation, summons dated 23.02.2021, 03.03.2021, 24.03.2021, 15.06.2021 and 29.07.2021 were issued. The petitioner admits the receipt of all such notices. But according to him, he has promptly responded the same; there is no wilful default on his part in absenting from appearing before the Investigating Officer. On the account of medical complications, age and movement restrictions and other infirmities prevented him from appearing before the Investigating Officer. However, he has taken prompt steps for producing all the documents sought for as per the summons and authorised his Accountant Mr. J. Arockia Rajadurai to appear and produce documents. The Enforcement Directorate accommodated the request when the authorised representative appeared on 24.08.2021 and his statement was also recorded. 8. All the same, the copy of summonses produced by the petitioner indicate that summonses issued under Section 50 of the Act asked him to appear before the Deputy Director in Crl.M.C.No.5569 OF 2021 11 person on different days noted in the summons. It is a fact that he did not turn up and had sent only his representative. When the Deputy Director has insisted his personal presence as part of investigation, there is no meaning in saying that he had sent his authorised representative. When personal appearance is insisted, petitioner cannot be heard to say that the Enforcement Directorate should rest content with the documents and statements of the employee deployed by him. The petitioner is expected to explain about amassment of huge sum of money. It may be true that he had sent his representative and documents through him. But when he owes personal explanation to the Directorate, he himself should appear. He cannot dictate that they should satisfy themselves with the documents and representative sent by him. Such a conduct on the part of the petitioner cannot be appreciated. In this connection, this Court can see a calculated attempt on the part of the petitioner to defeat the summons and prolong the process of investigation. His adamant stand that he will not appear before the Investigating Officer is not understandable. Crl.M.C.No.5569 OF 2021 12 9. The authorities relied on by the learned Senior Counsel are not apposite to the facts of the case. As rightly noticed by the learned Central Government Counsel, **Thadevoose** case, (supra) does not postulate situation in the present factual situation that too when a further investigation is underway. Even there, the court has reckoned the criminal antecedents and past conduct of the accused as one of the parameters. Here, it may be true that the petitioner has complied with stipulations imposed by the Special Court when his passport was allowed to be renewed earlier. But on his own showing, he has large business interests abroad. It is a matter for the Investigating agency to ascertain whether any part of the proceeds of the crime is parked abroad. Therefore, any further request for renewal of the passport can be considered only after the petitioner making himself available for the interrogation by the Investigating agency. 10. Here a further investigation is underway. Therefore, presumption under Section 23 of the Act works against the petitioner. Further, the petitioner has approached this Court Crl.M.C.No.5569 OF 2021 13 seeking exercise of its extra jurisdiction under Section 482 of the Code of Criminal Procedure. Such a person is expected to come with clean hands. The petitioner who is adamant and insist that he will not appear before the Investigating Officer has adopted a short cut method to get the passport renewed without co-operating with the investigation. The claim that he has co-operated with investigation has no basis at all. The learned Central Government Counsel has invited my special attention to Explanation No. (ii) to Section 44(d) of the Act also. On these considerations, Annexure A9 order does not warrant interference. The Crl.M.C. is dismissed. As rightly pointed out by the learned Special Judge, it is open to the petitioner to move the trial court afresh after appearing before the Investigating Officer and co-operating with the investigation. Sd/- **K.HARIPAL** **JUDGE** **DCS/29.03.2022** Crl.M.C.No.5569 OF 2021 14 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE A1**|**TRUE COPY OF THE ORDER IN CRL.MP NO 2487 OF**| |---|---| ||**2018 DATED 5.10.2018**| |**ANNEXURE A2**|**TRUE COPY OF THE PETITION CRL.MP NO 1350 OF**| ||**2021 FILED BY THE PETITIONER DATED**| ||**10.8.2021**| |**ANNEXURE A3**|**TRUE COPY OF THE ORDER PASSED BY THE COURT**| ||**OF CHIEF JUDICIAL MAGISTRATE, ERNAKULAM**| ||**DATED 31.8.2021 IN CMP NO 1260 OF 2021**| |**ANNEXURE A4**|**TRUE COPY OF THE COUNTER FILED BY THE**| ||**RESPONDENT IN CRL MP NO 1350 OF 2021 DATED**| ||**24.8.2021**| |**ANNEXURE A5**|**TRUE COPY OF THE REPLY FILED BY THE**| ||**PETITIONER IN CRL. MP NO 1350 OF 2021 DATED**| ||**15.9.2021**| |**ANNEXURE A6**|**TRUE COPY OF THE ADDITIONAL STATEMENT FILED**| ||**BY THE RESPONDENT IN CRL MP NO 1350 OF 2021**| ||**DATED 7.10.2021**| |**ANNEXURE A7**|**TRUE COPY OF THE ADDITIONAL REPLY FILED BY**| ||**THE PETITIONER IN CRL MP NO 1350 OF 2021**| ||**DATED 15.9.2021**| |**ANNEXURE A8**|**TRUE COPY OF THE WRITTEN SUBMISSION FILED**| ||**BY THE PETITIONER IN CRL MP NO 1350 OF 2021**| ||**DATED 13.10.2021**| |**ANNEXURE A9**|**TRUE COPY OF THE ORDER PASSED IN CRL.MP NO**| ||**1350 OF 2021 DATED 18.10.2021**| |**ANNEXURE A10**|**TRUE COPY OF THE E-MAIL DATED 27.11.2021**| ||**ISSUED TO THE 2ND RESPONDENT/PASSPORT**| ||**OFFICER**| |**ANNEXURE A11**|**TRUE COPY OF THE ONLINE PORTAL DATED**| ||**11.12.2021 FROM THE PASSPORT SEVA WEBSITE**|