2023 (8) TMI 410 - SC - Money Laundering

Remand in favour of the investigating agency, without seeking any specific prayer challenging the remand orders. Challenge to Orders passed by the majority of the Judges when a reference was made on a difference of opinion by the Division Bench of the Madras High Court, while dealing with a Writ Petition filed seeking a writ of Habeas Corpus in pursuance of an arrest made, followed by a remand to the judicial custody, and then to the authority concerned. Maintainability of Writ petition - HELD THAT - A writ of Habeas Corpus was moved questioning the arrest made. When it was taken up for hearing on a mentioning, the next day by the Court, the appellant was duly produced before the learned Principal Sessions Judge in compliance with Section 19 of the PMLA, 2002. The custody thus becomes judicial as he was duly forwarded by the respondents. Therefore, even on the date of hearing before the High Court there was no cause for filing the Writ Petition being HCP No. 1021 of 2023. Added to that, an order of remand was passed on 14.06.2023 itself. The two remand orders passed by the Court, as recorded in the preceding paragraphs, depict a clear application of mind. Despite additional grounds having been raised, they being an afterthought, there are no hesitation in holding that the only remedy open to the appellant is to approach the appropriate Court under the Statute. This was obviously not done. It is also noted that the appellant was very conscious about his rights and that is the reason why, by way of an application he even opposed the remand. Despite a conclusion that the writ petition is not maintainable, it is important to go further in view of the extensive arguments made by the learned Senior Advocates appearing for the appellant. As rightly contended by the learned Solicitor General the scheme and object of the PMLA, 2002 being a sui generis legislation is distinct. Though it is not wished to elaborate any further, it is found that there are adequate compliance of Section 19 of the PMLA, 2002 which contemplates a rigorous procedure before making an arrest. The learned Principal Sessions Judge did take note of the said fact by passing a reasoned order. The appellant was accordingly produced before the Court and while he was in its custody, a judicial remand was made. As it is a reasoned and speaking order, the appellant ought to have questioned it before the appropriate forum. We are only concerned with the remand in favour of the respondents. Therefore, even on that ground, it is held that a writ of Habeas Corpus is not maintainable as the arrest and custody have already been upheld by way of rejection of the bail application. The arguments of the learned Senior Advocates on the interpretation of Section 167(2) of the CrPC, 1973 cannot be accepted as the law has been quite settled by this Court in Deepak Mahajan 1994 (1) TMI 87 - SUPREME COURT . One cannot say that while all other safeguards as extended under Section 167(2) of the CrPC, 1973 would be available to a person accused but nonetheless, the provision regarding remand cannot be applied. Section 167(2) of the CrPC, 1973 merely complements and supplements Section 19 of the PMLA, 2002 - there are no inherent contradiction between these two statutes. Obviously, an arrest under Section 19 of the PMLA, 2002 can only be made after the compliance of much more stringent conditions than the one available under Section 41 of the CrPC, 1973. The interplay between an investigation and inquiry conferring the same meaning is only for the usage of common materials arising therefrom. Such materials are to be utilized for both the purposes. This is the basis upon which they are read together, giving the same meaning at a particular stage. In Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT it was in the context of a challenge to the enactment, particularly in the light of Section 25 of the Evidence Act, 1872. One shall not confuse such powers conferred under the statute with the police power, however, when it comes to application of Section 167(2) of the CrPC, 1973 such an authority has to be brought under the expression such custody especially when the words police custody are consciously omitted. Much arguments have been made on the basis of Anupam J. Kulkarni 1992 (5) TMI 191 - SUPREME COURT . As rightly submitted by the learned Solicitor General, the facts are different and therefore distinguishable - In the case on hand, there is no custody in favour of the respondents, a fact even acknowledged by the appellant earlier through the arguments of his advocates. The learned Solicitor General is right in his submission that apart from the fact that the word custody is different from detention , it can only be physical. As pointed out by him even the High Court has observed that the appellant continues to be in judicial custody. Admittedly, physical custody has not been given to the respondents. Admission of the appellant to the hospital of his choice cannot be termed as a physical custody in favour of the respondents. Custody could not be taken on the basis of the interim order passed by the High Court which certainly shall not come in the way of calculating the period of 15 days. An investigating agency is expected to be given a reasonable freedom to do it s part. To say that the respondents ought to have examined the appellant in the hospital, and that too with the permission of the doctors, can never be termed as an adequate compliance. Any order of the Court is not meant to affect a person adversely despite its ultimate conclusion in his favour. The doctrine actus curiae neminem gravabit would certainly apply in calculating the period of 15 days. Appeals dismissed. Custody of the appellant - HELD THAT - The learned Solicitor General submitted that the period of 15 days expires by 12.08.2023. Even the learned Principal Sessions Judge has granted 8 days of custody, though could not be given effect to. Conscious of the time constraint, the respondents are permitted to have custody of the appellant till 12.08.2023. The Registry is directed to place the matter before Hon ble the Chief Justice of India for appropriate orders to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation 60 or 90 days, as the case may be, as a whole.

Summary

Issues Involved:
1. Maintainability of the Writ of Habeas Corpus
2. Compliance with Section 19 of the PMLA, 2002
3. Application and Interpretation of Section 167(2) of the CrPC, 1973
4. Interplay between Section 19 of the PMLA, 2002 and Section 167 of the CrPC, 1973
5. Reconsideration of the Decision in Anupam J. Kulkarni Case

Summary:

1. Maintainability of the Writ of Habeas Corpus:
The Supreme Court held that the writ petition for Habeas Corpus was not maintainable. The appellant was produced before the learned Principal Sessions Judge, and custody became judicial. Thus, any plea of illegal arrest should be made before the Magistrate since the custody becomes judicial. The appellant's remedy was to approach the appropriate court under the statute, not by filing a writ petition.

2. Compliance with Section 19 of the PMLA, 2002:
The Court found adequate compliance with Section 19 of the PMLA, 2002, which mandates a rigorous procedure before making an arrest. The learned Principal Sessions Judge took note of this and passed a reasoned order. The appellant was produced before the court, and a judicial remand was made. Any non-compliance of Section 19 would benefit the person arrested, and the competent court could initiate action under Section 62 of the PMLA, 2002.

3. Application and Interpretation of Section 167(2) of the CrPC, 1973:
The Court reaffirmed that Section 167(2) of the CrPC, 1973 is applicable to arrests under the PMLA, 2002. The provision complements and supplements Section 19 of the PMLA, 2002. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation (60 or 90 days as a whole). The words "such custody" include not only police custody but also other investigating agencies. The word "custody" shall mean actual custody, and curtailment of 15 days by extraneous circumstances would not act as a restriction.

4. Interplay between Section 19 of the PMLA, 2002 and Section 167 of the CrPC, 1973:
The Court held that Section 167 of the CrPC, 1973 is a bridge between liberty and investigation, performing a fine balancing act. The Magistrate has a distinct role in ensuring compliance with Section 19 of the PMLA, 2002. Section 167 of the CrPC, 1973 facilitates the application of Section 19 of the PMLA, 2002, and provides adequate safeguards to an arrested person.

5. Reconsideration of the Decision in Anupam J. Kulkarni Case:
The Court found that the decision in Anupam J. Kulkarni (1992) 3 SCC 141 requires reconsideration by a larger bench. The interpretation that police custody should only be within the first 15 days of remand was found to be incorrect. The Court directed the registry to place the matter before the Chief Justice of India for appropriate orders to decide the larger issue of the actual import of Section 167(2) of the CrPC, 1973.

Conclusion:
The appeals filed by the appellant were dismissed, and the views expressed in the impugned judgments were upheld. The respondents were permitted to have the custody of the appellant till 12.08.2023. The appeals filed by the respondents were disposed of, and the application for intervention was dismissed. The larger issue regarding the interpretation of Section 167(2) of the CrPC, 1973 was referred to a larger bench for an authoritative pronouncement.