SANTHOSH EAPPEN Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petition and the Crl.M.C. came up together for hearing as the issue involved in both the cases pertains to the registration of FIR by the CBI with respect to the same matter and none of the counsel objected to the joint hearing.

(2.) The writ petitioner prayed for quashing Ext.P5 FIR registered by the CBI. He is a businessman who formed a company under the name and style of "Unitac Builders and Developers" for entering into the field of construction and another company "Sane Ventures LLP" for conducting business in hospitality and construction sectors. As part of his business, he entered into two agreements - Exts.P1 and P2 dated 31/7/2019 with the Consulate General of UAE, Trivandrum, Kerala for the construction of residential apartments for a total consideration of AED 70,00,000(UAE dirhams) and a hospital complex for a total consideration of AED 30,00,000 (UAE dirhams). As part payment for the construction, an amount of Rs.14,50,00,000/-(Rupees fourteen crores fifty lakhs) was transferred by the UAE Consulate to the companies' account. Exts.P1 and P2 were executed in sequence upon an agreement dated 11/07/2019 between the State of Kerala and UAE Red Crescent Authority (a voluntary humanitarian organization affiliated to the International Federation of Red Cross). As per the said agreement, the UAE Red Crescent agreed to give assistance to the recent Kerala flood victims by spending AED 10,000,000 (ten million UAE dirhams) for constructing homes and a health centre. Later the petitioner was asked by Consular General of UAE, Trivandrum, Kerala through one Swapna Suresh to give an amount of AED 2 million or equivalent Indian rupee for awarding the present and future projects. An amount of Rs.3,80,00,000/-(Rupees three crores eighty lakhs) was converted into US Dollar as per the instruction given by UAE Consulate General, Trivandrum, Kerala and it was entrusted to one Mr.Khalidh working as the economic head of UAE Consulate as per the instructions of Consulate General of UAE, Trivandrum, Kerala. Another amount of Rs.68,00,000/- (Rupees sixty eight lakhs) was transferred to "ISOMO" trading company owned by one Mr.Sandeep Nair for its liaison works. In addition to that, Mrs.Swapna Suresh demanded five i-phones from the petitioner and it was accordingly handed over to her. Ext.P3 is the true copy of the purchase bill dated 29/11/2019. In consonance with Exts.P1 and P2, construction work was started in the property owned by the State Government. The petitioner does not come under the ambit of Section 4 of the Foreign Contribution (Regulation) Act, 2010 (for short, the FCR Act). The registration of FIR is ultravires and falls outside the scope of Delhi Special Police Establishment Act, 1946 since no consent was given as mandated under Section 6 of the Act. Hence, the writ petition to declare that the CBI has no power to investigate a crime within the territory of the State Government without getting consent under Section 6 of the Delhi Special Police Establishment Act, to declare Ext.P7 resolution as unconstitutional, to declare that the 2nd respondent has no jurisdiction to investigate into the affairs of the petitioner's company, to declare that the power under Entry 80 of List I (Union List) of 7 th schedule can be exercised only by way of a proper legislative process and to quash Ext.P5 on the ground that the FIR was registered by the CBI without complying with the requirements of a preliminary enquiry as mandated by the judgment of the Apex Court in Lalita Kumari's case.

(3.) In Crl.M.C., the petitioner, the Chief Executive Officer, Livelihood, Inclusion and Financial Empowerment Mission (LIFE Mission), Government of Kerala sought to quash FIR No.RC 5(A)/2020/CBI/ACB/COCHIN dated 24/09/2020 (Annexure C) registered on the basis of Annexure A complaint lodged by Anil Akkara, MLA alleging offence under Section 35 r/w Section 3 of FCR Act r/w Section 120 B of IPC.