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2015 (8) TMI 1341 - HC - Money Laundering


Issues Involved:
1. Maintainability of the second habeas corpus petition.
2. Compliance with mandatory provisions of Cr.P.C. and PMLA.
3. Admissibility of statements recorded under PMLA.
4. Violation of fundamental rights under Articles 14, 20, and 21 of the Constitution of India.
5. Applicability of Section 45 of PMLA.

Detailed Analysis:

1. Maintainability of the Second Habeas Corpus Petition:
The respondent department raised the issue of maintainability of the second habeas corpus petition on the grounds of res judicata/constructive res judicata. They relied on Supreme Court judgments in Devilal Modi v. Sales Tax Officer and State of U.P. v. Nawab Hussain. However, the court found that these judgments pertain to civil proceedings and not to writ or habeas corpus petitions on new grounds. The Supreme Court had granted liberty to file a fresh petition, and thus, the court decided to consider the petition on merits.

2. Compliance with Mandatory Provisions of Cr.P.C. and PMLA:
The petitioner argued that there was noncompliance with mandatory provisions of Sections 154, 155, 157, 167, and 172 of Cr.P.C. and Section 65 of PMLA. The court noted that irrespective of whether the offence under PMLA is cognizable or non-cognizable, the respective procedure prescribed under the Cr.P.C. must be followed. The court found prima facie that the investigation was not conducted in accordance with the procedure established by law, thereby violating Article 21 of the Constitution of India.

3. Admissibility of Statements Recorded under PMLA:
The petitioner contended that statements recorded under Section 50 of PMLA are inadmissible as they were obtained after arrest and are hit by Articles 20(3) and 25 of the Evidence Act. The court referred to the Supreme Court's judgment in Tofan Singh v. State of Tamil Nadu, where it was held that officers under penal statutes exercising police powers are considered police officers for the purpose of Sections 25 & 26 of the Evidence Act. The court concurred with the view of the Delhi High Court in Gaurav Gupta v. Directorate of Enforcement, holding that statements recorded after arrest are inadmissible and hit by Article 20(3) of the Constitution.

4. Violation of Fundamental Rights under Articles 14, 20, and 21:
The petitioner argued that his arrest and continued custody were in violation of his fundamental rights guaranteed under Articles 14, 20, and 21 of the Constitution. The court found that the arrest and continued custody were prima facie in violation of Article 21, as the investigation did not comply with the procedure established by law. The court emphasized that Article 21 provides an embargo on deprivation of personal liberty except according to the procedure established by law.

5. Applicability of Section 45 of PMLA:
The respondent argued that the offence under PMLA is cognizable and non-bailable, and thus, the petitioner cannot be released on bail. However, the court found prima facie that Section 45 of PMLA does not override the provisions of Article 21 of the Constitution. The court also noted that the petitioner was not arraigned as an accused in the scheduled offence investigated by the Crime Branch, and therefore, the rigors of Section 45 in granting bail were not applicable to the petitioner.

Conclusion:
The court issued a rule and ordered the petitioner to be released till the final decision of the petition, subject to furnishing a personal bond and other conditions. The court declined the respondent's request to stay the order of interim release, maintaining parity with similarly situated co-accused. The parties were given liberty to move for an early hearing after the decision of the Apex Court in Tofan Singh v. State of Tamil Nadu.

 

 

 

 

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