IMPORTANT POINT
The right to bail prevails over statutory restrictions when prolonged incarceration without trial violates constitutional rights.

JUDGMENT :

MANOJ KUMAR OHRI, J.

1. By way of present bail application, the petitioner/applicant seeks regular bail in the proceedings emanating out of ECIR/35/DLZO/I/2022 dated 16.09.2022 which was registered on the basis of the FIR bearing No. 9A dated 23.11.2016 registered by the Central Bureau of Investigation (hereafter, the CBI), AC-III, New Delhi under Sections 120-B of IPC & 13(1)(d) r/w 13(2) of PC Act, 1988.

2. The allegations made in the aforesaid FIR, in nutshell, are that Mr. Amanatullah Khan, i.e. the main accused, in his tenure as chairman of the Delhi Waqf Board (hereafter, the “DWB”), misused his position from March 2016 - October 2016 to appoint and engage relatives and other known persons to various posts in the DWB, from which they derived pecuniary benefits. It was further alleged that the tenancies of DWF properties were allotted without inviting bids and leased out only on reserve price. There were also allegations of misuse of DWB funds.

The predicate offence was investigated by the CBI which culminated into filing of chargesheet bearing No. 07/2022 dated 31.08.2022. While the appointments of Mr. Mehboob Alam as CEO, four persons under the NAWADCO Scheme, Mr. R.K. Yadav and Mr. Hamid Akhtar were found to have been made illegally, the rest of the allegations were found to be administrative irregularities. Indisputably, the applicant is neither arrayed nor summoned as an accused in the predicate case.

3. In the ECIR, apart from the abovementioned FIR, three more FIRs registered subsequently, have also been clubbed. As per ED”s case, the main accused, who had acquired huge cash amounts being the proceeds of crime arising out of his involvement in illegal recruitment in DWB, in order to launder the same, invested the proceeds of crime in immovable properties through his associates, namely, Zeeshan Haider, Daud Nasir and others by concealing and suppressing their actual value by showing false amounts in the sale deeds which were very nominal in comparison to their actual sale value. It is alleged that these actively concealed amounts that were paid in cash to the applicant being the seller of one of the immovable properties are nothing but the proceeds of crime acquired by the main accused vide his involvement in the scheduled offence.

4. Mr. Manu Sharma, learned counsel for the applicant submits that the applicant is innocent and has been falsely roped in the present case without an iota of evidence available against him.

It is contended that though the CBI during the investigation of the predicate offence had restricted the investigation to the aspect of appointments to the DWB, the respondent agency without any basis extended the ambit of investigation to leasing out of waqf properties and misuse of DWB funds, both of which the CBI had found to be only administrative irregularities. Further, the CBI had not alleged that the main accused Amanatullah Khan received any pecuniary gains out of the scheduled offence and even no scheduled offence was made out against the applicant herein. Therefore, even if assuming that money has flown from the main accused via other accused persons for purchase of the applicant’s property, the said money cannot be said to have been derived from this scheduled offence and hence the said money are not proceeds of crime. No evidence has been brought on record to show that the applicant had any knowledge of the source of funds of the purchasers.

5. As far as the sale transaction of the property is concerned, it is contended that the applicant is an Indian passport holder who has been working and residing in Dubai with his wife and three children since 2007. He made investments in India by purchasing properties in accordance with law. The properties in question, being property bearing No. 275 and 276, Zaidi Villa, TTI Road, Jamia Nagar, Okhla, New Delhi-110025 were purchased by the applicant in the name of his wife on 12.04.2019 from one Syed Ahmed Raza Zaidi and Samina Zaidi, Heba Zaidi Kh