9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (1) TMI 401 - HC - Money LaunderingSeeking grant of regular bail - Power to arrest - noncompliance of the mandate of Section 19 of the PMLA - Legality of arrest of the Petitioner - violation of settled tenets of law in Section 41A(3) Cr.PC or not - HELD THAT - The issue whether the law laid down in MOIN AKHTAR QURESHI VERSUS UNION OF INDIA ORS. 2017 (12) TMI 289 - DELHI HIGH COURT or in RAJBHUSHAN OMPRAKASH DIXIT VERSUS UNION OF INDIA AND ANR 2018 (2) TMI 1327 - DELHI HIGH COURT would be applicable, need not detain this Court any longer, in as much as, it is trite law that pendency of a reference to a larger bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision is rendered in the reference. Till the time, the decisions cited at the bar are not modified or altered in any way, they continue to hold the field . In the present case, there is absolutely no doubt that at the time of arrest of the petitioner i.e., on 09.06.2023, the law laid down in Moin Akhtar Qureshi was holding the field, which position continued till the pronouncement of decision in PANKAJ BANSAL VERSUS UNION OF INDIA ORS. 2023 (10) TMI 175 - SUPREME COURT whereby Moin Akhtar Qureshi and CHHAGAN CHANDRAKANT BHUJBAL, MS. ANJALI DAMANIYA, VERSUS UNION OF INDIA, 2016 (12) TMI 1014 - BOMBAY HIGH COURT were specifically overruled. Meaning thereby that at the time of petitioner s arrest, oral communication of the grounds of arrest was proper compliance of the provisions of Section 19(1) of the PMLA. The above position is also fortified by the observation of the Supreme Court in RAM KISHOR ARORA VERSUS DIRECTORATE OF ENFORCEMENT 2023 (12) TMI 785 - SUPREME COURT wherein the Court held that non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. Now reverting to the factual conundrum which still looms large in the present case and needs to be decided is whether the petitioner was orally communicated, or in other words shown, the grounds of arrest at the time of his arrest and for this purpose reference to ground of arrest and other contemporaneous documents is imperative - Clearly, the document ground of arrest bears the signatures of the petitioner at two points. One, immediately after the conclusion of narration of grounds of arrest. Secondly, below the endorsement made in terms of the judgment of the Supreme Court in SHRI DK. BASU, ASHOK K. JOHRI VERSUS STATE OF WEST BENGAL, STATE OF UP. 1996 (12) TMI 350 - SUPREME COURT to the effect that the petitioner has been intimated about his rights as an arrestee and his wife has been informed about his arrest physically at 22.28 on 09.06.2023. Therefore, there is no substance in petitioner s contention that the signature of the petitioner on the ground of arrest is only a token of acknowledgement of the compliance of mandate of D.K. Basu. Therefore, merely because each page of the ground of arrest is not signed by the petitioner cannot be a reason to disbelieve the existence of the said document, or to negate the fact that the grounds of arrest were shown and informed to the petitioner. This Court to sum up, the findings which have been recorded in the remand order dated 10.06.2023, as corrected by order dated 20.06.2023, as follows (i) the contention of the Ld. Counsel for the accused that the petitioner/accused was not informed about the grounds of his arrest, is contrary to the records, (ii) the petitioner/accused has been shown the grounds of his arrest, and (iii) the grounds of arrest have been duly signed by the petitioner and countersigned by two independent witnesses. The issue deserves to be considered from yet another angle. The respondent/ED had moved an application Section 167 Cr.P.C. seeking remand of the petitioner and a copy of same was undisputedly served upon the learned counsel for the petitioner before the learned Special Judge on 10.06.2023. The remand application when juxtaposed with the ground of arrest reveals that the remand application virtually contains the grounds of arrest, therefore, in view of the law laid down in Moin Akhtar Qureshi the petitioner stood informed of the grounds of arrest in terms of Section 19(1) of the PMLA when he was produced before the learned Special Judge within twenty-four hours of his arrest by the ED for seeking his remand. Concerned officer did not forward a copy of the arrest order along with the material in his possession immediately to the Adjudicating Authority in terms of the mandate of sub-section (2) of Section 19 of the PMLA - HELD THAT - The petitioner was arrested on 09.06.2023 at 10 25 pm, which happened to be a Friday night. There is substance in the contention of Mr. Hossain that on Saturday i.e. 10.06.2023 and Sunday i.e. 11.06.2023 the office of the Adjudicating Authority remained closed, therefore, copy of arrest order along with other relevant material was immediately forwarded on 12.06.2023. It is trite law that where a period is prescribed for the performance of an act in a Court or office, and that period expired on a holiday, then according to Section 10 of the General Clauses Act, 1897, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. The obligation flowing from the expression immediately occurring in Section 19(2) of the PMLA has to be given meaning depending upon the context and the manner in which arrest order along with other material is to be forwarded to the Adjudicating Authority in accordance with the rules - Further, it is well settled that when the statute provides something to be done in a particular manner it can be done in that manner alone - there is no delay in forwarding a copy of the Order of Arrest along with the material to the Adjudicating Authority. Thus, it cannot be said that the arrest of the petitioner is illegal. Under the circumstances, the petition and bail application deserve to be dismissed and, are accordingly dismissed.
Issues Involved:
1. Legality of the Petitioner's Arrest. 2. Non-compliance with Section 19 of the PMLA. 3. Prospective Application of the Supreme Court's Decision in Pankaj Bansal. Summary: Legality of the Petitioner's Arrest: The petitioner sought a declaration that his arrest was in gross violation of Section 41A(3) Cr.PC, and all consequential actions including remand orders were null and void. The petitioner also requested interim reliefs including release from custody and a stay on further investigation. Non-compliance with Section 19 of the PMLA: The petitioner argued that his arrest violated Section 19(1) and (2) of the PMLA as he was not informed of the grounds of arrest, nor was a copy of the arrest order forwarded to the Adjudicating Authority immediately. The court examined whether the petitioner was shown the grounds of arrest and concluded that the petitioner was indeed informed of the grounds of his arrest orally, which was in compliance with the prevailing law at the time of his arrest. Prospective Application of the Supreme Court's Decision in Pankaj Bansal: The court noted that the Supreme Court in Pankaj Bansal held that the grounds of arrest must be furnished in writing to the arrested person without exception, effective 'henceforth'. This decision was interpreted as prospective, meaning it did not apply to arrests made before the date of the decision. The court referred to the Supreme Court's decision in Ram Kishor Arora, which clarified that non-furnishing of grounds of arrest in writing before the Pankaj Bansal decision could not be deemed illegal. Detailed Judgment: 1. Legality of the Petitioner's Arrest: - The petitioner, a businessman and ex-promoter of M/s Bhushan Steel Ltd., was arrested by the Directorate of Enforcement (ED) for alleged involvement in a significant banking fraud and money laundering. - The petitioner contended that his arrest violated Section 41 and 41A of the CrPC and Section 19(1) and (2) of the PMLA. - The court found that the petitioner was orally informed of the grounds of arrest, which was in compliance with the law prevailing at the time (Moin Akhtar Qureshi case). 2. Non-compliance with Section 19 of the PMLA: - The court examined the 'ground of arrest' document, which bore the petitioner's signatures, indicating he was informed of the grounds of arrest. - The court noted that the arrest memo, panchnama, and other contemporaneous documents supported the respondent's claim that the petitioner was informed of the grounds of arrest. - The court held that the oral communication of the grounds of arrest was sufficient compliance with Section 19(1) of the PMLA as per the law at the time of arrest. 3. Prospective Application of the Supreme Court's Decision in Pankaj Bansal: - The court observed that the Supreme Court's decision in Pankaj Bansal, which mandated furnishing written grounds of arrest, was prospective and did not apply to the petitioner's arrest made before the decision. - The court referred to the Supreme Court's clarification in Ram Kishor Arora that non-furnishing of written grounds of arrest before the Pankaj Bansal decision could not be deemed illegal. Conclusion: The court dismissed the CRL.M.C. 4376/2023 and BAIL APPLN 2356/2023, holding that the petitioner's arrest was legal and in compliance with the law prevailing at the time. The court clarified that the merits of the case were not considered.
|
