2025 (3) TMI 1104 - HC - Money Laundering

Money Laundering - Challenge to detention/arrest of the petitioner - question to validity of the arrest said to be not in consonance with the provision of Section 19 (1) of the PML Act 2002 since the grounds of arrest has not been supplied at the time of arrest of the petitioner in writing rather the grounds of arrest were for the first time supplied on 10.11.2024 along with the counter affidavit filed on behalf of respondent - HELD THAT - In the first FIR six charge sheets have been filed. More than 2000 accused have been named in the charge sheets. 550 witnesses have been named. In the case of the second FIR there are 14 accused named in the chargesheet. In connection with this FIR 24 witnesses have been cited. In the third FIR 24 accused have been named in the charge sheet and 50 prosecution witnesses have been cited. The offences alleged in the aforementioned crimes are mainly under Sections 120B 419 420 467 and 471 of the Penal Code 1860 and Sections 7 12 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988. Section 34 of the Penal Code 1860 has been invoked. These offences are scheduled offences within the meaning of Section 2(y) of the PMLA. Therefore relying on the final reports filed in aforementioned scheduled offences for an offence of money laundering under Section 3 of the PMLA punishable under Section 4 the Enforcement Directorate (ED) registered an Enforcement Case Information Report (for short ECIR ) bearing ECIR No. MDSZO/21/2021 on 29th July 2021. Consequently the appellant was arrested on 14th June 2023 in connection with the said ECIR and was remanded to judicial custody. A complaint was filed for the offence under Section 3 of the PMLA Act which is punishable under Section 4 on 12th August 2023. The appellant is the only accused named in the complaint. Cognizance has been taken based on the complaint by the Special Court under the PMLA. The scheduled offences cases have been transferred to the learned Assistant Sessions Judge Additional Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu (Special MPMLA Court) Chennai. The Hon ble Apex Court while taking note of the settled principle that the stringent provisions regarding the grant of bail such as Section 45(1)(iii) of the PMLA cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time has allowed the appeal and direction has been passed that the appellant shall be enlarged on bail till the final disposal of the case. The provisions of Section 167(2) of the Code deals with both types of remand i.e. judicial remand and police remand . The police have been given a right to apply before the Magistrate concerned for giving the accused in police custody and on being satisfied of adequate grounds the Magistrate may grant police remand of the accused for a specific period not beyond first fifteen days and later on he can authorise only judicial detention of the accused till 90 to 60 days as the case may be. Sections 209 and 309 of the Code deal with judicial custody during inquiry and trial - So far as authorisation of police custody of accused under Section 167 (2) is concerned it is legislative mandate that in no way the detention of the accused in police custody can be authorised for any time after expiry of the period of first fifteen days remand. The Magistrate may allow detention other than custody in police till 90/60 days as the case may be. The Hon ble Apex Court in the case of Central Bureau of Investigation special investigation cell-I Vs. Anupam J. Kulkarni 1992 (5) TMI 191 - SUPREME COURT has observed that the Magistrate is competent to authorise detention of any accused in police custody for a specific period on adequate grounds only for the first fifteen days and that detention in police custody or judicial custody or vice versa can be authorised only within first fifteen days. After fifteen days detention the accused cannot be sent to police custody at all except in other cases in which remand of first fifteen days has not yet started. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. Admittedly the writ petitioner has challenged order dated 09.06.2023 but has not questioned the illegality and propriety of order dated 08.06.2023 meaning thereby the writ petitioner is having no grievance with respect to the issue of remand dated 08.06.2023 otherwise said order would have been challenged by the writ petitioner. It means the writ petitioner has accepted the remand order and has not challenged the order of remand rather he has chosen to prefer application under Sections 439 and 440 Cr.P.C before the Court of Sessions on merit by denying the allegation as referred in the ECIR by filing Misc. Cri. Application No. 1915 of 2023 for grant of bail which was dismissed vide order dated 07.07.2023 by learned Special Judge CBI-cum-Special Judge under PMLA Ranchi. The moment the petitioner has shown no grievance with respect to any of the issues even the issue of arrest by raising the ground that he is not knowing as to on what ground he has been arrested rather he in each and every page has endorsed by putting his signature and gave note that he read over the content of the ground of arrest and did not shown any dissatisfaction. This Court is not hesitant in coming to the conclusion that the writ petitioner was having no grievance with respect to the issue of remand order dated 08.06.2023. Had the remand order dated 08.06.2023 have any infirmities the writ petitioner would have made objection to that effect showing his dissatisfaction in the application which was filed before the Court having the jurisdiction for the purpose of remand of the present petitioner but admittedly that has not been done. This Court in the entirety of the facts and circumstances as has been discussed herein above is of the view that in view of confinement of prayer the writ petition is required to be considered only with respect to the propriety/impropriety of order dated 09.06.2023 and in view of discussions made the petitioner has not been able to make out a case for showing interference in order dated 09.06.2023. Conclusion - i) The petitioner could not challenge the arrest order after confining the writ petition to the remand order as recorded in the judicial order dated 04.10.2024. ii) The remand order dated 09.06.2023 was valid as the petitioner was informed of the grounds of arrest and the procedural requirements for remand were met. iii) The petitioner failed to establish grounds for interference with the remand order dated 09.06.2023. Petition dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The primary issues considered by the Court were:

• Whether the petitioner can challenge the validity of the arrest order dated 07.06.2023 after confining the writ petition to the remand order dated 09.06.2023.
• Whether the remand order dated 09.06.2023 is valid, considering the alleged non-communication of grounds of arrest.
• Whether the petitioner has made a case for interference with the remand order dated 09.06.2023.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Validity of challenging the arrest order after confining the writ petition

The Court analyzed the procedural history and noted that the petitioner, through senior counsel, had confined the challenge to the remand order dated 09.06.2023. The Court emphasized that a judicial order dated 04.10.2024 recorded this confinement, and no review or recall of this order was sought by the petitioner. Relying on precedents, the Court held that judicial records are conclusive of what transpired, and without a challenge to the order confining the prayer, the petitioner could not now contest the arrest order.

Issue 2: Validity of the remand order dated 09.06.2023

The Court examined whether the remand order was valid given the alleged non-communication of the grounds of arrest. It noted that the petitioner was informed of the grounds of arrest on 07.06.2023, with the petitioner acknowledging this by signing the document. The Court distinguished between the requirements at the time of arrest and those at the time of remand, asserting that the latter does not necessitate the same procedural safeguards as the former.

The Court also highlighted that the remand on 08.06.2023 was not contested by the petitioner, indicating acceptance of the judicial custody. The subsequent order dated 09.06.2023, which granted police custody for interrogation, was within the legal framework and did not require the same procedural safeguards as the initial arrest.

Issue 3: Case for interference with the remand order dated 09.06.2023

The Court evaluated whether the petitioner demonstrated sufficient grounds to challenge the remand order. It concluded that the petitioner did not contest the initial remand order dated 08.06.2023, which was the actual order of judicial custody. The order dated 09.06.2023 was merely for police custody for interrogation purposes. The Court found no procedural irregularities or violations of statutory provisions in the issuance of the remand order.

3. SIGNIFICANT HOLDINGS

The Court held that:

• The petitioner could not challenge the arrest order after confining the writ petition to the remand order, as recorded in the judicial order dated 04.10.2024.
• The remand order dated 09.06.2023 was valid, as the petitioner was informed of the grounds of arrest, and the procedural requirements for remand were met.
• The petitioner failed to establish grounds for interference with the remand order dated 09.06.2023.

The Court emphasized the importance of adhering to procedural norms and the binding nature of judicial records. It dismissed the writ petition, concluding that the petitioner did not demonstrate any legal infirmity in the remand order. The Court also noted that the petitioner had not raised any objections at the time of the initial remand, further weakening the case for challenging the subsequent order.