2017 (12) TMI 289 - HC - Money Laundering

Prevention of Money Laundering - judicial custody - writ of habeas corpus - Held that - The reason for the petitioner not pressing his bail application before the learned Special Judge was that on 13.09.2017, in the present proceedings the petitioner had made a statement through counsel that he shall not press his application for regular bail before the Competent Court till the next date of hearing, which got extended from 09.10.2017 to 16.10.2017; and from 16.10.2017 to 17.10.2017 and; from 17.10.2017 to 23.10.2017. On 23.10.2017, the complaint under Section 45 of the PMLA was filed by the Director of ED, whereon cognizance was taken by the learned Special Judge against the accused persons, including the petitioner herein, who was arrayed as accused No.1. The learned Special Judge observed that accused No.1 was already remanded to judicial custody till 25.10.2017 and that he be produced before the Court on 25.10.2017, the date already fixed. On 25.10.2017, the petitioner/ accused No.1 was produced from custody. He was directed to be produced from custody on the next date, which was fixed as 07.11.2017. Thus, the petitioner continues to be in judicial custody and there appears to be no illegality whatsoever in his continuing judicial custody. The petitioner has statutory remedy of seeking regular bail from the Competent Court under Section 45 of the PMLA. Thus, there was no question of this Court being called to issue a writ of Habeas Corpus for release of the petitioner when he is continuing in judicial custody. Not only his present judicial custody appears to be legal, but his initial arrest on 25.08.2017, and his subsequent remand to ED custody on successive occasions, and his eventual judicial remand also appears to be a result of application of judicial mind. The same cannot be described as mechanical. Thus, we agree with Mr. Mahajan that, firstly, there was no illegality in the initial arrest of the petitioner. There was sufficient compliance of Article 22(1) of the Constitution of India, as the petitioner stood informed of the grounds of his arrest when he was permitted to read the same. He was also informed of the same vide the remand application under Section 167 Cr PC read with Section 65 of the PMLA moved on 26.08.2017. We also agree with the submission of Mr. Mahajan that a writ of habeas corpus does not lie in the facts of the present case, since the petitioner was placed initially in ED custody remand, and thereafter in judicial custody by orders passed by a competent court with due application of mind. W.P. dismissed.

Issues Involved:
1. Legality of the arrest.
2. Compliance with Article 22(1) of the Constitution of India.
3. Validity of the remand orders.
4. Maintainability of the writ of habeas corpus.

Issue-wise Detailed Analysis:

1. Legality of the Arrest:
The petitioner argued that his arrest by the Enforcement Directorate (ED) was illegal because he was not informed of the grounds of his arrest as required under Article 22(1) of the Constitution and Section 19 of the Prevention of Money Laundering Act (PMLA). The court observed that the petitioner was informed of the grounds of his arrest when he was allowed to read the grounds, which he acknowledged by writing "Read." The court held that this constituted sufficient compliance with the requirement to inform the arrestee of the grounds of arrest. The court also noted that the petitioner was further informed of the grounds of his arrest through the remand application presented to the Special Judge on the following day.

2. Compliance with Article 22(1) of the Constitution of India:
Article 22(1) mandates that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. The court held that the petitioner was adequately informed of the grounds of his arrest both at the time of arrest and through the remand application. The court emphasized that the purpose of informing the arrestee of the grounds of arrest is to enable him to consult a legal practitioner and prepare his defense. The court found that the petitioner was able to exercise these rights, as evidenced by his legal representation and the subsequent legal proceedings.

3. Validity of the Remand Orders:
The petitioner contended that the remand orders passed by the Special Judge were mechanical and without application of mind. The court examined the orders and found that they were detailed and reflected due consideration of the submissions made by both the ED and the petitioner. The court noted that the Special Judge had applied his mind to the materials presented and provided reasons for granting the remand. The court concluded that the remand orders were not mechanical and were passed with due application of mind.

4. Maintainability of the Writ of Habeas Corpus:
The court held that a writ of habeas corpus is not maintainable when a person is in judicial custody pursuant to an order of a competent court, which is not prima facie without jurisdiction or wholly illegal. The court observed that the petitioner was in judicial custody under valid remand orders passed by the Special Judge. The court also noted that the petitioner had the statutory remedy of seeking regular bail from the competent court. The court concluded that there was no illegality in the petitioner's judicial custody and dismissed the writ petition.

Conclusion:
The court found no merit in the petitioner's arguments and dismissed the writ petition. The court held that the petitioner was duly informed of the grounds of his arrest, the remand orders were valid and passed with due application of mind, and the writ of habeas corpus was not maintainable in the circumstances of the case. The court clarified that its observations would not prejudice the case of either party in the ongoing proceedings under the PMLA.

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