Mumbai, Mar 11: The Enforcement Directorate faced a big embarassment today when a local court rejected its plea seeking Hasan Ali Khan's remand for custodial interrogation and granted him bail after observing contents of some of its "confidential" documents were "available in Wikipedia".
Principal Sessions Court Judge M L Tahaliyani while rejecting the agency's remand application for 14-day custodial interrogation of the controversial 53-year-old businessman and Pune-based stud farm owner observed it had failed to back its charges in a money laundering case under the Prevention of Money Laundering Act.
"No material evidence has been presented by the ED that shows any scheduled offence has been committed by Khan," Tahaliyani observed, ordering that the man alleged to have stashed billions abroad be enlarged on conditional bail.
The ED, which arrested Khan on Monday midnight after being pulled up by the Supreme Court for its failure to ensure his custodial interrogation, was left red faced as the Judge said," Despite its arguments, the ED has not been able to demonstrate that a scheduled offence has been committed in the first place."
The ED said it will challenge the order and move a superior court.
About the "confidential" documents submitted by the agency in a sealed cover while seeking Khan's remand, the Judge said, "It was noticed by me that contents of some of the documents were available in Wikipedia".
"It appears (from the documents) that two accounts of Khan were never operational and not funded as the bank was not satisfied with credentials of the accused and (those) two accounts were never made operational," the Judge said.
The court ordered Khan's release after rejecting the ED's prayer for a stay on execution of the bail to enable them to contest the judgement in a superior court as they apprehended he would abscond.
Tahaliyani then barred Khan from leaving the city for the next five days during which he would have to report to ED office every day.
The court also rejected the argument that USD 700,000 was transferred from Khan's Sarasin Bank account in Switzerland to the account of S K financial services based in United Kingdom maintained by Barclays Bank London through Citi bank New York and accepted defence lawyer I P Bagadia' s contention that the account holder was one H A Kahn and not Khan (Hasan Ali Khan).
On the charge that Khan had hoarded USD 8 billion in UBS, Switzerland, something which the bank has denied, the court said there was no material to show that money was transferred to UBS and that tainted money was shown as untainted.
"After going through all the documents what I conclude is that if the ED did not believe the genuineness of the communication of UBS bank it should have taken further steps to enquire the matter," he said.
While maintaining that some of the documents furnished by the ED were contradictory, the court observed that none of them came from authenticated sources and the agency had not verified their genuineness.
Noting that for the purpose of PMLA it was necessary for ED to demonstrate that the proceeds involved were from commission of a crime, the Judge said "There is no material to show that any scheduled offence has either been committed by the accused (Khan) or any other persons."
After going through the statement of Kashinath Tapuria, who according to the ED is an accomplice of Khan, the court observed that it appeared that he (Tapuria) was in need of money and Khan promised him loan to revive his sick unit 'Incap'. "It also appears that Khan created false documents to show that he can seek heavy loans," observed the court.
The Judge said from what had been stated by the ED before the court only a case under the Passport Act and Indian Penal Code was made out against Khan.
"What is alleged is that the passport was obtained by forging document. It is obvious that the amounts stated to be lying in banks were not proceeds from crime allegedly done by obtaining passport," Tahaliyani remarked.
Soon after the court dismissed ED's plea and ordered Khan to be released on bail, the investigative agency's counsel Rajiv Awasthi said they would move a superior court against the order after going through the full text of the judgement.
"We have overwhelming evidence (to show Khan's culpability in money laundering) but probably the court failed to appreciate those. We will appeal before a superior court," Awasthi told reporters.
Asserting that ED's investigation in the case was proceeding "effectively", Awasthi said, "We have received some links....Hasan Ali's remand was needed to bridge some gaps in the probe."
The court had on Wednesday severely rebuked the Enforcement Directorate over its handling of the money laundering case, observing it had not been able to make out even a single case against the businessman to seek his custody and asked the agency to do its "homework". PTI
