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2017 (7) TMI 1453 - HC - Indian LawsSeeking issuance of Writ of Habeas Corpus - release from the custody by setting aside impugned remand order - violation of fundamental right of petitioner as guaranteed under Article 14 and 21 of the Constitution of India - acquiring huge amount illegally out of the said proceeds of crime and investigation was initiated - HELD THAT - It appears from the impugned order of special judge that there was ample material in possession of the arresting authority, on the basis of which there was reason to believe that the Petitioner had been guilty of an offence punishable under Section 4 read with Section 3 of the PML Act. Thus, none of the contentions raised by the Petitioner to challenge his arrest as illegal holds merit. As a result, the Petitioner has failed to show that his arrest is wholly illegal, null and void and that the Special Court had passed the Remand Order mechanically without application of mind. His petition for Habeas Corpus cannot be maintainable. Hence, this is not a fit case either to admit, much less, to grant the relief. Order passed separately, signed and dated.
Issues:
1. Challenge to remand order under Prevention of Money Laundering Act (PMLA) 2. Compliance with procedural requirements under PMLA and Code of Criminal Procedure (CrPC) 3. Applicability of provisions of CrPC to offences under PMLA Analysis: Issue 1: Challenge to Remand Order under PMLA The petitioner sought a writ of Habeas Corpus to challenge the remand order dated 3.5.2017 and subsequent orders, alleging that they were illegal, unconstitutional, and violated fundamental rights under Articles 14 and 21 of the Constitution of India. The petitioner argued that the remand orders were not in compliance with procedural requirements and infringed upon constitutional rights. The respondent opposed the prayer, contending that the arrest and subsequent custody were legal and in accordance with the provisions of the law. The Court examined the legality of the remand order and cited precedents to establish that a writ of Habeas Corpus cannot be granted unless the detention suffers from a lack of jurisdiction or absolute illegality. The Court found that the Special Judge had passed a reasoned order for remand after due consideration, indicating that the detention was not without jurisdiction or wholly illegal, thus rendering the Habeas Corpus petition not maintainable. Issue 2: Compliance with Procedural Requirements under PMLA and CrPC The petitioner argued that the investigation under PMLA must follow the procedures prescribed under the Code of Criminal Procedure (CrPC), emphasizing the mandatory requirements such as sending a report of a cognizable offence to the concerned court and maintaining a case diary. The petitioner contended that the respondents did not comply with these provisions, thereby rendering the judicial custody illegal. However, the respondent justified the arrest and custody based on information received from the CBI and the legality of the remand order passed by the Special Court. The Court examined the procedural aspects of the case and concluded that the arrest and subsequent custody were in compliance with the law, as evidenced by the material in possession of the arresting authority and the reasoned order passed by the Special Judge. Issue 3: Applicability of CrPC Provisions to Offences under PMLA The Division Bench of the Bombay High Court's observations were cited regarding the applicability of CrPC provisions to offences punishable under PMLA. The Court highlighted that the PMLA being a special law with overriding effect over CrPC, the provisions of CrPC would apply only if they are not inconsistent with the provisions of PMLA. The Court emphasized that investigation under PMLA is to be conducted by authorities under the Act, and the provisions of CrPC related to police officers do not apply in such cases. The Court noted that the provisions of PMLA, specifically Section 19 regarding the power to arrest, did not require compliance with CrPC procedures like lodging a complaint before effecting arrest. Therefore, the Court rejected the petitioner's contentions that the arrest was illegal due to non-compliance with CrPC procedures, affirming the legality of the arrest and custody under PMLA. In conclusion, the Court found that the petitioner failed to demonstrate that the arrest and remand were illegal, null, or void. The Court held that the Special Court had not passed the remand order mechanically, and thus, the petition for Habeas Corpus was deemed not maintainable. The case was reserved for orders, with the decision to be passed separately.
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