2023 (7) TMI 389 - HC - Money Laundering

Bribe - Writ of Habeas Corpus (to produce the body before court - seeking direction to respondents to produce the body of the detenu Shri V.Senthil Balaji, S/o Velusamy aged about 48 years before this Court and set him free - petitioner was not permitted to avail the right to consent a legal counsel. The allegation against the detenu is that, while officiating as a Transport Minister in the Government of Tamil Nadu, he had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. Whether or not a Writ of Habeas Corpus would be maintainable after passing of Judicial Order of Remand of the detenu and if so, on what premises? - HELD THAT - The Hon'ble Supreme Court of India in Kanu Sanyal's case 1974 (2) TMI 85 - SUPREME COURT held that irrespective of the pointers of legality or otherwise with regard to the initial detention, when there is a subsequent order making the detention as legal, in the application for Habeas Corpus, the Court is not concerned with the same. The Hon ble Supreme Court of India in Serious Fraud Investigation Office s case 2019 (3) TMI 1411 - SUPREME COURT , while considering the ex post facto extension granted by the Central Government, by which only, the Agency had jurisdiction to proceed further, considered the issue in detail and held that the Habeas Corpus Petition will no longer be maintainable once there is an Order authorising judicial custody as the custody is the pursuant to the custodial judicial function exercised by a competent Court. A petition for Habeas Corpus agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality. Whether the petitioner herein had made out a case for exercise ofpowers under Article 226 of the Constitution of India to set the detenu free? - Violation of Article 22(1) - HELD THAT - From the very nature of the allegations in this case that there was non-cooperation and threat and allegation of manhandling leading to a drama at the time of arrest, it can be prima facie concluded that there is no ground to discard the veracity in the averment made on behalf of the respondent officials - Copies of e-mails sent to the relatives of the detenu including the petitioner herein and SMS messages sent through telephone numbers are also produced. Therefore, I am satisfied that there due compliance of the Article 22 of the Constitution of India and the provisions in the Code of Criminal Procedure relating to the same in this regard. Non-following of Sections 41 and 41-A of Cr.P.C. - HELD THAT - It can be seen that the provisions of both the statutes absolutely make it clear that if there is a special enactment and if there is any special provision contained in respect of any particular purpose, then that special provision will apply. Wherever the special enactment does not contain specific provisions, then the provisions of the Code of Criminal Procedure would apply. The Code of Criminal Procedure and P.M.L.A are thus clearly and categorically harmonious - the issue is no longer res integra and the Hon ble Supreme Court of India had considered that the special provision in the form of Section 19 adequately safeguards the interests of the accused and thus, the express application of Sections 41 and 41-A of Cr.P.C., stood negated in respect of the offence under P.M.L.A. On a perusal of the counter affidavit filed by the Investigating Officer of the case, it would be clear that the accused behaved in a manner so as to intimidate the Investigating Officer and secondly, did not also furnish the particulars which were necessary to trace out the money trail relating to the offence and thirdly was hampering the investigation. Therefore, on more than one ground mentioned in Section 41(1)(b) of Cr.P.C., the arrest was necessary and the same is clearly mentioned in the grounds of arrest and thus, even in the absence of specific application, substantially the requirements under Section 41 and 41-A of Cr.P.C., stood complied in the instant case - the petitioner has not made out a case in this regard. Non-application of mind at the time of remand - HELD THAT - It cannot be said that there is non-application of mind much less total nonapplication of mind. The contention of the learned Senior Counsel for the detenu is that when the objections are raised in the petition to reject the remand, the said petition ought to have been considered while making the order of remand and it was incumbent on the part of the learned Presiding Officer to apply his or her mind in respect of those objections and if those objections are found to be genuine or valid, then the remand should be refused and if the objections are liable to be rejected, then the remand should be authorised. Even though a petition for objections has been taken up subsequently, all the substantive allegations of non-information of the grounds, non-existence of prima facie case and other concerns were independently considered by her which reflects in the order of remand and therefore, the violation complained is only of procedure and becomes technical in nature, as there is substantive application of mind in the order of remand. Therefore, in this context, even though, the submissions of the learned Senior Counsel agreed upon that the procedure adopted by the learned Pricipal Sessions Judge could have been better, substantive compliance relating to the application of mind as to the compliance of the Article 22 of the Constitution of India, Section 19 of P.M.L.A for arrest and consideration of other apprehensions expressed by the detenu himself are made and therefore, there the exercise of power cannot be termed as absolute mechanical manner or 'total non application of mind'. Therefore, it can be seen that the petitioner is unable to make out any ground. Every ground raised is untenable or to say the least is arguable both in terms of law and on facts and therefore, this is not a case of patent illegality or absolute nonapplication of mind or case of lack of jurisdiction so as to grant any relief to the petitioner. If the detenu is not be set free, then whether the period from the moment of his arrest on 14.06.2023, whereby, he is admitted in the Hospital till his discharge is to be excluded while computing the time of initial 15 days from the date of remand to judicial custody under Section 167 of Cr.P.C., so as to entrust him for the custody of the respondents? - HELD THAT - From Section 65 of P.M.L.A and if Section 65 is read along with Section 4(2) and 5 of Cr.P.C., it can be seen that in respect of the investigation of the offences under P.M.L.A, since no other contrary or separate procedure is contained in P.M.L.A, the provisions relating to investigation would be applicable to the offences relating to P.M.L.A - the word Police is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word Police has to be read as Investigating Agency or the Enforcement Directorate. Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits. In this case, after the arrest and before the production before the learned Principal Sessions Judge and after the remand, not even a minute, for which, the detenu / accused was available to the respondents for custodial interrogation. In the offences like P.M.L.A, especially in the current scenario, when money trail is difficult to be unearthed on account of huge advancement of technology wire transfers, off-shore investments and transfers, it is extremely essential to unearth the truth and the custodial interrogation assumes significance - The accused, in this case, was unwell and it was due to his Coronary Artery Disease. The reason is attributable not to the Enforcement Directorate. Similarly, not permitting him in the custody for interrogation, is only taking into consideration of his own health and his health condition so that he will not be put to undue stress when he is ailing from a serious disease and post operative care. In such circumstances, when the first 15 days goes in the Hospital for his own benefit, then the benefit of custodial interrogation cannot be denied in its entirety to the respondents Enforcement Directorate. By the interim order dated 15.06.2003, this Court, based on the medical reports of the detenu, had agreed that the detenu needs emergency medical treatment and ordered shifting to Cauvery Hospital for treatment. As a matter of fact, the respondents Enforcement Directorate had every right to feel aggrieved by our interim order and also to approach the Hon'ble Supreme Court for redressal and has been rightly done so in this case. But, at the same time, the custody was also pressed on the next day. Had the learned Principal Sessions Judge, Chennai had granted the prayer, then virtually, it would amount to overruling the order that there is necessity for emergent treatment. What reliefs are to be granted in the present Habeas Corpus Petition? - HELD THAT - By the interim order, it was directed shifting of the detenu / accused to the Cauvery Hospital, Chennai to undergo treatment for his ailment. It is also submitted before us that already, the surgery is performed and he is out of the Intensive Care Unit and at present, continuing his treatment in the Hospital. Considering the fact that he has undergone surgery and he can continue to undergo the treatment at the Cauvery Hospital for a period of another 10 days from today or until discharge whichever is earlier. If he needs treatment even after the 10th day, the same shall be continued at the Prison Hospital and his physician / surgeon can also visit him there and continue the treatment/follow up. In the result, (i) The Habeas Corpus Petition in H.C.P.No.1021 of 2023 shall stand dismissed; (ii) The period from 14.06.2023 till such time the detenu / accused is fit for custody of the respondent shall be deducted from the initial period of 15 days under Section 167(2) of the Code of Criminal Procedure; (iii) The detenu / accused shall continue the treatment at Cauvery Hospital until discharge or for a period of 10 days from today whichever is earlier and thereafter, if further treatment is necessary, it can be only at the Prison/ Prison Hospital as the case may be; (iv) As and when he is medically fit, the respondents will be able to move the appropriate Court for custody and the same shall be considered on its own merits in accordance with law except not to be denied on the ground of expiry of 15 days from the date of remand; (v) However, there shall be no order as to costs.

Summary

Issues Involved:
1. Maintainability of Habeas Corpus Petition.
2. Compliance with Section 41A of CrPC.
3. Validity of Arrest and Detention under PMLA.
4. Exclusion of Time for Custodial Interrogation.
5. Power of Enforcement Directorate (ED) to Seek Custody.

Summary:

1. Maintainability of Habeas Corpus Petition:
The court examined whether the Habeas Corpus Petition is maintainable after a judicial remand order. The petitioner argued that the remand was illegal and without application of mind, citing violations of procedural safeguards under Article 22 of the Constitution. The respondents contended that once a judicial remand is ordered, the Habeas Corpus Petition is not maintainable. The court concluded that Habeas Corpus is maintainable in cases of absolute illegality, total non-application of mind, or lack of jurisdiction, even after a judicial remand order.

2. Compliance with Section 41A of CrPC:
The petitioner argued that the arrest was illegal due to non-compliance with Section 41A of CrPC, which mandates notice before arrest for offenses punishable with imprisonment up to seven years. The respondents contended that PMLA is a special enactment with its own provisions for arrest, which overrides the CrPC. The court held that the principles underlying Sections 41 and 41A CrPC should be read into Section 19 of PMLA, which provides adequate safeguards and a higher standard for arrest. The court found that the arrest was necessary and complied with the requirements under Section 41(1)(b) of CrPC.

3. Validity of Arrest and Detention under PMLA:
The petitioner alleged that the grounds of arrest were not informed to the detenu, violating Article 22 of the Constitution. The respondents provided evidence of informing the detenu and his relatives through SMS and email. The court found that there was due compliance with Article 22 and the provisions of CrPC relating to arrest. The court also noted that the remand order by the Principal Sessions Judge showed application of mind and was not mechanical.

4. Exclusion of Time for Custodial Interrogation:
The court examined whether the period spent in the hospital should be excluded from the initial 15 days of judicial custody for custodial interrogation. The petitioner argued that the first 15 days rule is inviolable, while the respondents cited a recent Supreme Court decision allowing exclusion of time in exceptional circumstances. The court held that the time spent in the hospital should be excluded, allowing the Enforcement Directorate to seek custodial interrogation once the detenu is medically fit.

5. Power of Enforcement Directorate (ED) to Seek Custody:
The petitioner contended that ED officers are not police officers and cannot seek custody under Section 167 CrPC. The respondents argued that ED is entitled to seek custody for effective investigation. The court held that Section 65 of PMLA makes the provisions of CrPC relating to investigation applicable to PMLA, allowing ED to seek custody. The court found that the respondents are entitled to custodial interrogation and the period spent in the hospital should be excluded from the initial 15 days.

Conclusion:
1. The Habeas Corpus Petition is maintainable.
2. The Enforcement Directorate is not entrusted with the powers to seek police custody under PMLA.
3. The miscellaneous petition seeking exclusion of the period is dismissed.
4. The detenu is ordered to be set at liberty forthwith.