2023 (10) TMI 823 - HC - Money Laundering

Money Laundering - seeking arrest of respondent - issuance of non-bailable warrants which were never cancelled. It was submitted that it is the case of the department that the said non-bailable warrants remained in force and, therefore, the execution of the same by arresting the present respondent was within permissible parameters of the procedure. HELD THAT - Admittedly, in the present case, the non-bailable warrants issued on 12.01.2018 remained on the file of the investigating agency and no steps were taken to execute them. A copy of the said non-bailable warrants has been placed on record as Annexure P-5 to the present petition. A perusal of the said non-bailable warrants reflects that the columns provided to enumerate the steps taken in furtherance of the said warrants are blank except that there is an endorsement that the warrants were executed and the respondent was arrested on 14.02.2023 at 2100 Hours. Normally, warrants are issued by the concerned Court during the course of investigation when an accused person is not available despite efforts or after filing of the chargesheet when the person who has been summoned by the concerned Trial Court does not appear to face trial. Another possible situation can be where warrants issued against a person during the course of investigation could not be executed and a chargesheet/complaint is filed with respect to the other accused persons and the person against whom warrants have been issued is shown as absconding. In the present case, open ended nonbailable warrants remained unexecuted till the complaint was filed and cognizance was taken by the learned Special Court. It is also relevant to note that the said non-bailable warrants were never returned to the learned Special Court. In the present complaint, the respondent is not being shown as an absconder. There is no mention of NBWs being issued, during the course of investigation, in the complaint. In the instant case, admittedly, upon completion of investigation, the complaint had been filed, in pursuance of which summons had been issued to the present respondent. If the unexecuted non-bailable warrants issued prior to filing of the complaint had been duly returned to the Court, could the department have arrested the respondent when only summons for appearance had been issued? The department, after issuance of summons, in such a case, could not have arrested the respondent unless warrants were issued by the learned Special Court on requisite grounds. The exercise of power of arrest by the department was totally unjustifiable. This Court finds no reason to interfere with the impugned order dated 16.02.2023 - Petition dismissed.

Summary

Issues Involved:
1. Legality of the non-bailable warrants and their execution.
2. Justifiability of the respondent's arrest and subsequent police remand.
3. Procedural compliance and rights of the respondent under PMLA and CrPC.

Summary:

1. Legality of the Non-Bailable Warrants and Their Execution:
The petitioner, Directorate of Enforcement, initiated ECIR/09/DLZO/2016 against 11 accused, including the respondent, under PMLA. Non-bailable warrants (NBWs) were issued on 12.01.2018. The respondent was detained and arrested on 14.02.2023 based on these NBWs, which were never cancelled. The court noted that the NBWs remained unexecuted until the complaint was filed and cognizance taken. The NBWs should have been returned unexecuted at the time of filing the complaint. The arrest based on these NBWs was deemed unjust, unfair, and unreasonable.

2. Justifiability of the Respondent's Arrest and Subsequent Police Remand:
The respondent was produced before the Special Court on 15.02.2023 and remanded to judicial custody. The application for police custody was dismissed, and interim bail was granted. The court observed that the NBWs were not returned to the Special Court, and the respondent was not shown as an absconder in the complaint. The arrest was not made under Section 19 of PMLA but under Section 73(3) of CrPC. The court held that the arrest and subsequent application for police remand were unjustifiable.

3. Procedural Compliance and Rights of the Respondent under PMLA and CrPC:
The court emphasized the need for just, fair, and reasonable procedures under Article 21 of the Constitution. It highlighted that the respondent's arrest was not in compliance with Section 19 of PMLA. The court referred to the Supreme Court judgments, emphasizing the role of the Magistrate in ensuring compliance with Section 167 of CrPC when remanding an accused. The court found that the department's actions violated the respondent's rights and dismissed the petition, upholding the interim bail.

Conclusion:
The court dismissed the petition, finding no reason to interfere with the impugned order dated 16.02.2023. The application for regular bail pending before the Special Court was directed to be decided expeditiously. The judgment was to be uploaded on the court's website and sent to the concerned Special Court for compliance.