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TMI Blog2017 (12) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ment was recorded in those proceedings on 05.01.2016. Thereafter, the petitioner was served summons dated 05.01.2016 in respect of the case registered under PMLA vide ECIR/18/DLZO/2015/AD requiring him to appear at 4:30 p.m. on the same day for recording his statement under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA). The petitioner states that he appeared in response to the summons issued in the PMLA case between November 2016 and 16.12.2016. 3. On 16.02.2017, the CBI registered FIR RC No.224/2017 under Section 8, 9, 13(2) read with 13(1)(d) of the Prevention of Corruption Act (PC Act) and Section 120B IPC against the petitioner, unknown persons and public servants for alleged offences committed during the period 2011-2013. 4. On 15.03.2017, the ED registered another ECIR being No. ECIR/02/DLZO/2017/AD under the PMLA on the basis of the FIR registered by the CBI. The petitioner was summoned to appear before the ED on 25.08.2017, and the petitioner appeared in response to the said summons. He claims that after having been detained for the whole day, he was subsequently arrested on the same day under Section 19 of the PMLA. 5. On 26.08.2017, the petitioner w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice". (emphasis supplied) Section 19 of the PMLA reads: "19. Power to arrest.- (1) If the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall within twenty-four hours, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ." also point to the mandatory nature of the obligation cast by the said provision on the arresting officer, to inform the person arrested of the grounds for such arrest. 12. Mr. Handoo submits that in the facts of the present case, the petitioner was served with an arrest memo which disclosed the "section of law" under which, presumably, the petitioner was arrested as "3 r/w 4 Prevention of Money Laundering Act of 2002". By itself, the said information was wholly inadequate to enable the petitioner to brief his legal practitioner, or to enable the petitioner to effectively protect his liberty. He further submits that the petitioner was purportedly shown the grounds of arrest and his endorsement taken thereon at the time of his arrest on 25.08.2017, which reads "READ". However, the said grounds of arrest were not served on the petitioner. Similarly, on the arrest order, the signatures of the petitioner were obtained on 25.08.2017. Mr. Handoo submits that, as a matter of fact, the petitioner was not allowed to even read the grounds of arrest. In any event, merely permitting the petitioner to read the said grounds is not sufficient compliance of Article 22(1) of the Constitution, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 19(2) of the Act. 16. Mr. Handoo has drawn the attention of the Court to "Prevention of Money Laundering (the form and forms the manner of forwarding a copy of order of arrest of a person along with the material to the adjudicating authority and its period of retention) Rules, 2005" ("PML Arrest Rules") and, in particular, to the definition of the words "material" contained in Rule 2(g), and "Order" contained in Rule 2(h), which read as follows: "2.(1) In these rules, unless the context otherwise requires - xxx xxx xxx xxx xxx xxx xxx (g) "material" means any information or material in the possession of the Director or Deputy Director or Assistant Director or any authorised officer, as the case may be, on the basis of which he has recorded reasons under sub-section (1) of section 19 of the Act; (h) "order" means the order of arrest of a person and includes the grounds for such arrest under sub-section (1) of section 19 of the Act;" (emphasis supplied) 17. Mr. Handoo submits that for exercise of power of arrest under Section 19 of the PMLA, it is essential that the Competent Authority should, firstly, have material in his possession on the basis of which he forms a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner was not served with the grounds of arrest. Only upon the directions of the learned Special Judge, CBI, the application to seek the petitioners remand was served upon the petitioners counsel. 21. Mr. Handoo further submits that the learned Special Judge, CBI while allowing the remand application preferred by the ED on 26.08.2017, passed the order mechanically and without application of mind, granting ED custody remand for a period of five days i.e. upto 31.08.2017. Mr. Handoo submits that the learned Special Judge, CBI further extended the ED custody remand of the petitioner on 31.08.2017 by four days i.e. till 04.09.2017 vide order dated 31.08.2017 and, on this occasion as well, the said order extending the petitioners ED custody remand was passed mechanically, without due application of mind. 22. Mr. Handoo has placed reliance on the decision of a Division Bench of the Allahabad High Court in Vimal Kishore Mehrotra v. State of U.P. & Anr., AIR 1956 All 56. The Division Bench referred to the decision of the Supreme Court in State of Bombay v. Atma Ram, AIR 1951 SC 157 (C), wherein the Supreme Court had held that the test is, whether the communication is sufficient to enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he has been arrested under S. 7 of the Act, the petitioner would not know what exactly he is alleged to have done. For purposes of Cl. (1) of Article 22, it is not necessary for the authorities to furnish full details of the offence. But the information should be sufficient to enable the arrested person to understand why he has been arrested. The ground to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case. In the present case the petitioner should have been told that the charge against him is that, on the morning of 18-5-1955 near J.K. Jute Mill, Kanpur he threatened Janardan Pande in order to dissuade him from going to work." (emphasis supplied) 23. In para 42 and 43, the Division Bench observed: "42. It is the fundamental right of every person that on being arrested he must be "informed, as soon as may be, of the grounds for such arrest"; he cannot be detained in custody without being so informed. It is the common case of the parties before us that the applicant on being arrested was informed merely that he had been arrested under Section 7 of the Act; there is no allegation that any other information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which were issued on November 11, 1968, satisfied the constitutional requirement. Madhu Limaye and others are, therefore, entitled to be released on this ground alone. 12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and others have, by moving this Court under Article 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing." In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab [AIR 1952 SC 106 : 1952 SCR 395 : 1952 Cri LJ 656] and Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa [(1972) 3 SCC 256, 259 : 1972 SCC (Cri) 481] where it was said (at p. 259, para 7): "in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". and yet in another decision of this Court in Talib Hussain v. State of Jammu & Kashmir [(1971) 3 SCC 118, 121] Mr Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that (at p. 121, para 6): "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing." Of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Division Bench. The Division Bench was dealing with a writ of habeas corpus, wherein the arrest and detention was challenged on the ground of the same being illegal and unlawful. He has particularly placed reliance on para 47 of the said decision, which reads as follows: "47. Now let us discuss at what stage the legality of an illegal detention can be challenged in a habeas corpus proceeding. In the case of A.K. Gopalan Vrs. Government of India reported in AIR 1966 SC 816, it is held that in dealing with the petition for habeas corpus, the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of application and the date of hearing. In the case of Col. Dr. B. Ramachandra Rao Vrs. State of Orissa reported in AIR 1971 SC 2197, it is held that in habeas corpus, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceeding. In the case of Talib Hussain Vrs. State of Jammu Kashmir reported in AIR 1971 SC 62, it is held that in habeas corpus proceeding, the Court has to consider the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he magistrate directed detention in jail custody after applying his mind to all relevant matters .....if there detention in custody could not continue after their arrest because of the violation of Art.22 (1) of constitution, they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities." It is further held that if the detention in custody could not continue after the arrest because of violation of Article 22 (1) of the Constitution, the arrested person detained in jail custody is entitled to be released forthwith. The orders of remand which are routine and passed in a mechanical manner would not cure the Constitutional infirmities. In view of the above discussion, we are of the view that once the arrest is illegal, unauthorized and is in violation of Article 22 (1) of the Constitution of India, the same cannot be cured by any action like remand etc., in the hands of a Judicial Magistrate." (emphasis supplied) 29. Mr. Handoo also places reliance on Nawabkhan Abbaskhan v. The State of Gujarat, (1974) 2 SCC 121. In this case, an externment order was passed against the appellant. He was alleged to be guilty of floutin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resting a person under Section 19 of the PMLA, the substance of the information, at least, ought to have been provided with documents, if any, to enable the learned Special Judge to decide whether, or not, to grant bail to the petitioner, and also take a decision on whether, or not, to send the petitioner in remand. Mr. Handoo has also referred to Section 60A of the Code which provides that "no arrest shall be made except in accordance with the provisions of this Code or any law for the time being in force provided for arrest". Section 50 of the Code obliges, "every police officer or other person arresting any person without warrant ........" to "forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest." 32. He submits that the ED has acted as a judge in its own cause. The ED had sent a communication to the CBI on 31.08.2016 informing the CBI that during the course of investigation under FEMA, inter alia, against the petitioner, he was found to have indulged as a middleman for several public servants, and that the analysis of the records disclosed the commission of cognizable offence. On the basis of the said communic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 37. In support of his above submission, Mr. Mahajan, firstly, places reliance on Chhagan Chandrakant Bhujbal v. Union of India, 2016 SCC Online Bom 9938 - a decision rendered by a Division Bench of the Bombay High Court in a writ petition preferred to seek a writ of habeas corpus for release of the petitioner. In the said case, two Enforcement Case Information Report (ECIR) were registered by the ED. The petitioner was summoned in respect of those ECIRs and he appeared before the ED. The petitioner claimed that he had been restrained from moving out of the office - even for taking lunch and was, thus, illegally taken in custody by restraining his movement. An arrest order dated 14.03.2016 was made against the petitioner. The petitioner was, thereafter, produced on the following day before the Special Court under the PMLA. He was remanded to custody of ED for two days. When his ED remand custody ended, he was remanded to judicial custody, which was extended from time to time. At the time of filing of the writ petition, he was still in judicial custody. Subsequently, a criminal complaint was preferred against the petitioner and other accused persons before the Special Court alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrested and produced before the Additional Chief Metropolitan Magistrate, before whom an application for remand to police custody was made to facilitate further investigation in the case. Simultaneously, the accused moved their applications for bail before the learned Magistrate. The submission of the accused was that their arrest was illegal inasmuch, as, the grounds of their arrest were not at all communicated to them. On the other hand, the respondent claimed that the accused were orally communicated the grounds of their arrest. The learned Magistrate observed that Section 50 of the Code was mandatory, and as there was no compliance therewith, the accused were entitled to grant of bail. However, on a subsequent application made by the prosecution to seek stay of the order granting bail, the learned Magistrate passed an order staying the execution of the order of bail. Since the endeavour of the accused to seek vacation of the said ex-parte order failed, they preferred the Criminal Application before the High Court. 40. The submission of the accused that under Section 50 of the Code, it was mandatory that the police officer should immediately communicate to the person arrested f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be produced before the nearest Magistrate within a period of 24 hours and his further detention in custody, whether police or judicial, beyond 24 hours has to be under the authorisation of the learned Magistrate which authorisation cannot be for more than 14 days at a time. Secondly depending upon the nature of the offence and the punishment prescribed therefor, such authorisation cannot go beyond 60 days or 90 days and thereafter whatever may be the offence if the accused offers bail and charge-sheet is not filed, the Code provides that such persons shall be released on bail. Provisions of Section 50 of the Code of Criminal Procedure will have to be appreciated, understood and interpreted in the light of all these provisions. In the light of these provisions, I do not think that the communication referred to in Section 50 of the Code of Criminal Procedure must be in every case in writing. What is important is communication or knowledge or information regarding the particulars of the offence for which the arrest is made or other grounds for such arrest. Provisions in Section 50 of the Code of Criminal Procedure provide that the police officer shall "forthwith communicate to him ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions in Madhu Limaye (supra) and Kanu Sanyal (supra), to be able to succeed in the present petition, the petitioner would not only have to establish that his initial arrest was illegal, but also that his subsequent remand by the learned Special Judge was also illegal, and that the illegality existed on the date of return in the present petition. In fact, the detention should be illegal on the date of hearing of the writ petition. 43. For this proposition, Mr. Mahajan places reliance on a Full Bench decision of this Court in Rakesh Kumar Vs. State, 53 (1994) DLT 609 (FB). The Full Bench considered a reference made to it on a difference of opinion arising between two learned Judges of this Court on the issue: "as to whether in view of the provisions of Section 36-A to 36D of the Narcotic Drugs & Psychotropic Substances Act 1985 (hereinafter to be called N.D.P.S. Act), was the Metropolitan Magistrate entitled to remand the petitioner in judicial custody during the investigation of the case registered against the petitioner vide F.I.R. No. 532 of 1992 dated October 30, 1992 from time to time for 15 days at a time till the challan is filed and secondly, in case it were to be held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any redress in the writ petition. The Full Bench, inter alia, observed as follows: "35. Reference is made to the law appearing in England, as is culled but from Halsbury's Laws of England, Fourth Edition Volume II at page 791. Some quotation has also been taken from the Third Edition. At the outset, we may mention that the very perusal of the law with regard to the date of return, time of making of return and the contents of the return, as mentioned in Halsbury's Laws of England Fourth Edition Volume II at page 791 make it evident that a return can be modified later on with the permission of the Court even upto the date of the hearing of the habeas corpus petition. If a return can be allowed to be amended and filed, then it is not understandable as to how it can be said that in England, the legal position is that detention of a person is to be justified only upto the date of the filing of the return. 36. In a book The Law of Habeas Corpus by R.J. Sharpe, 1976 Edition from pages 174 to 181, the legal position has been summarised by the learned author and he has opined as follows: - "It has been held consistently that the relevant time at which the detention of the pris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. It is no doubt true that the Courts under the Constitution are jealously inclined to protect the liberty of a person keeping in view the mandate of Article 21 of the Constitution of India and the remedy of taking resort to habeas corpus is the most efficacious remedy available to any aggrieved person. A writ in the nature of habeas corpus is issued requiring the persons or the authorities detaining any person to show cause as to on what basis such a person is being detained and if no proper cause is shown for detaining the person in accordance with law, a command issues from the Court for releasing such a person forthwith. 39. In case of Naranjan Singh Nathawan (supra), the Supreme Court had observed that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings. Facts, in brief, were that the petitioner in that case was arrested on July 5, 1950 under an order issued by District Magistrate, Amritsar under Section 3 of the Preventive Detention Act 1950. The grounds of detention were served on him on July 10, 1950. The Act was amended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame ratio was laid down that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. In this case, the facts were simple. The habeas corpus petition was filed challenging the detention of some political leaders who were arrested on March 6, 1953. In the return, their detention was sought to be justified on the basis of two remand orders, one alleged to have been passed by the Additional District Magistrate at 8 P.M. on March 6, 1953 and the other by a Trial Magistrate at about 3 P.M. on March 9, 1953. The Supreme Court, on looking up the record, found that no valid order of remand had been made on March 9, 1953 at all and after the hearing was over in the case, certain documents were sought to be put on the record in order to show that in fact an order has been made remanding the said detenue to judicial custody till March 11, 1953. The Supreme Court held that they cannot take notice of the documents produced in such suspicious circumstances and they held that they were not satisfied that there was any order of remand. In p73 that situation, the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on arising for decision before us that if the detention of a particular person is justifiable even after a return is filed, could such a person be released even though his detention was illegal for any earlier period? 45. In case of Talib Hussain (supra), a learned Single Hon'ble Judge sitting in a vacation has held that in a habeas corpus proceedings, the Court has to consider the legality of the detention on the date of hearing and no writ can be issued if detention on that date is lawful. This judgment is not in conflict with the judgments of the Supreme Court which are referred above. So, it cannot be said that this judgment is per inquirium. 46. In case of Col. Dr. B. Ramachandran Rao (supra), to which same learned Single Judge was also a party, it was held that in proceedings of a writ of habeas corpus, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. A fortiori the Court would not be concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus. The earlier two Supreme Court judgments in cases of Ram Narayan Singh (supra) and N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Magistrate pending committal proceedings or trial, should be set at liberty by issuing a writ of Habeas Corpus on the ground that his initial detention was violative of the constitutional guarantee enshrined in Articles 21 and 22 of the Constitution of India. It was argued on behalf of the petitioner that when he was arrested, he was not informed the grounds of his arrest, and as such, his arrest was in contravention of his rights guaranteed under Article 22(1) of the Constitution of India. The petitioner, consequently, contended that since his initial arrest was bad, he was entitled to be released by issuance of a writ of Habeas Corpus. The petitioner placed reliance on an earlier decision of the Allahabad High Court in Vimal Kishore Mehrotra (supra) - which is also relied upon by the petitioner herein. In relation to Vimal Kishore Mehrotra (supra), the Full Bench observed: "7. ... ... ... This case of Vimal Kishor was not dealing with the situation where a particular person's detention at a subsequent stage had been legalised by a valid order of remand. The Court only considered the question whether the grounds of arrest were communicate to the petitioner 'as soon as may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the judgment of Kanu Sanyal((1974) 4 SCC 141 : AIR 1974 SC 510) makes it clear that although before the Supreme Court the detention of Kanu Sanyal was challenged right from the time of its inception and it was specifically pleaded vide question formulated at A that initial detention of the petitioner was illegal for violating Article 22(1) of the Constitution, yet their lordships of the Supreme Court refuse to go into that question once they found that subsequently the petitioner Kanu Sanyal had been sent to Visakhapatnam Jail where it could be further judged whether his detention was in accordance with law or not. A perusal of the said judgment indicates that since the Supreme Court found that detention of Kanu Sanyal in Visakhapatnam jail was valid pursuance of the orders of the Special Judge hence the writ petition was dismissed by the Supreme Court. Accordingly in view of the judgment of the Supreme Court in Kanu Sanyal's case the contention of Sri B.S. Mishra learned counsel for the petitioner that if at all initial detention of the petitioner is rendered invalid for violation of some constitutional provision then in no circumstance can the detention of such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of bail which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody. 23. We are also of the view that the Magistrate has acted rather mechanically in remanding the accused petitioner herein to judicial custody without so much as making sure that the remaining accused persons are quickly served with the process of the court and/or produced before the court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and production of the other accused persons. This kind of apathy is regrettable to say the least. We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held that, "a Writ of Habeas Corpus cannot be granted when a person is committed to jail custody by the competent Court by an order, which, prima facie, does not appear to be without jurisdiction or wholly illegal." (emphasis supplied)" 54. The Supreme Court also considered the decision in Madhu Limaye (supra). The observation made by the Division Bench in relation to these decisions read as under: "47. ... .... The bare perusal of these two Judgments; one in the case of Kanu Sanyal (supra) and the other in the matter of Madhu Limaye (supra), thus, make it clear that both the Judgments pertain to the preventive detention of the Petitioners therein under the provisions of Article 22 of the Constitution and not in respect of the arrest of a person accused of an offence punishable under IPC or under any other special law. Secondly, as per the Judgment in the case of Kanu Sanyal (supra), only when the detention of the Petitioner on the date of filing of the Writ Petition is illegal, it was held that the Writ of Habeas Corpus can lie and it cannot be granted where a person is committed to Jail custody by a competent Court by an order, which, prima facie, does not appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits; a petition seeking the writ of habeas corpus on the ground of absence of a valid order or remand or detention of the accused has to be dismissed, if on the date of the return of the rule, the custody or detention is on the basis of a valid order. The Supreme Court, in its conclusion, held as follows: "It is well-accepted principle that a Writ of Habeas Corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao and Kanu Sanyal, the court is required to scrutinize the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is opposite to note that the investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en on the date of return, which was fixed as 13.09.2017, as also presently, the petitioner is in judicial custody and a writ of Habeas Corpus is not maintainable to assail the orders whereby the petitioner was, initially, remanded to the ED custody, and thereafter, placed in judicial custody. 58. Mr. Mahajan submits that the petitioner's application to seek bail is pending before the learned Special Judge, and the petitioner is pursuing the same. Though the petitioner's counsel had made his statement on 13.09.2017 that the application seeking regular bail shall not be pressed before the competent Court, subsequently, the said statement was withdrawn by the petitioner through counsel on 23.10.2017. 59. Mr. Anil Soni, learned Central Government Standing Counsel has adopted the submissions advanced by Mr. Mahajan. He further submits that the definition of the expression "order" in the PML Arrest Rules shows that the order is distinct from the grounds of arrest under sub-Section (1) of Section 19 of the Act. He submits that the obligation on the Competent Authority is only to "inform" the arrestee of the grounds of arrest, and it is not essential that the "order" of arrest is served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Supra). ii. Neither Section 19(1) of PMLA nor the definition of the expression 'order' as given in Sub-Clause (h) of Rule 2, of the PMLA Arrest Rules provide that the grounds for such arrest are mandatorily required to be provided in writing to the person arrested at the time of his arrest. Oral communication of the grounds of arrest is not only a substantial, but proper compliance of the provision. Section 19(1) also does not state that the grounds of arrest are to be informed to the person arrested, immediately. The use of the word in Section 19(1) "as soon as may be" makes it clear that grounds of arrest may not be supplied at the time of arrest itself or immediately on arrest, but as soon as may be. See Chhagan Chandrakant Bhujbal (Supra). iii. There is basic and fundamental difference between detention of a person under the provisions of law providing for preventive detention, and detention of a person arrested, accused of commission of an offence. In the case of a person arrested on accusation of commission of an offence, he is required to be produced before the Magistrate within 24 hours. He has the right to consult and to be defended by a legal practitioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a wholly illegal manner, then, the Writ for Habeas Corpus itself is not maintainable. See Chhagan Chandrakant Bhujbal (Supra). viii. If on the date of the hearing of the writ petition, it is shown that the detention of a particular person is valid, mere fact that his detention had been invalid earlier would not entitle such a petitioner to have any redress in a habeas corpus petition. Even if detention of a particular person is not in accordance with law earlier, but if by happening of subsequent events his detention presently is legally valid, then there does not arise any question of releasing such a person from custody. See Rakesh Kumar (Supra). ix. A writ of habeas corpus would be totally misplaced where an accused is facing prosecution for the offences, cognizance whereof has already been taken by the competent court and he is in custody pursuant to the order of remand made by the said Court. See Saurabh Kumar (Supra). 63. Article 22 of the Constitution deals with the aspect "Protection against arrest and detention in certain cases". The scheme of Article 22 shows that, on the one hand, it deals with the aspect of arrest - which would, obviously, relate to a possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation cast on the Arresting Authority to produce the arrestee before the nearest Magistrate within 24 hours of the arrest, with a further mandate that such person shall not be detained in custody beyond the said period of 24 hours without the authority of the Magistrate, ensures placement of the information/ justification for the arrest of the person before the Magistrate and his due application of mind to the issue whether the arrest should continue, or not. 67. The decision of the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal (supra) and that of the learned Single Judge of the same Court in Sunil Chainani (supra) appeal to us and we find ourselves in complete agreement with the reasoning adopted by the learned Judges in those decisions. The expression "communicate to such person the grounds on which the order has been made ... ... ..." used in Article 22(5) has to be interpreted in the context of the purpose for which the said obligation is cast on the State. The communication of the grounds of preventive detention is to afford to the detenue the earliest opportunity of making an effective representation against the order of detention. Unlike in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds of his arrest when he was permitted to read the same, against which he also made his endorsement, in writing, as "Read". The submission of the petitioner that, as a matter of fact, the petitioner was not permitted to read the grounds of arrest, and merely his endorsement to that effect was taken by the respondent cannot be accepted, since in writ proceedings such disputed questions cannot be gone into and the Court has to proceed on the basis of the record. The record reflects the position that the petitioner had acknowledged having read the grounds of arrest. The petitioner need not have made the said endorsement if, as a matter of fact, he had not read the grounds of arrest. Pertinently, the order dated 26.08.2017 passed by the learned Special Judge, granting ED custody remand of the petitioner does not show that it was contended before him that the grounds of arrest were not even allowed to be read, and that the endorsement to that effect was falsely or coercively obtained. The relevant extract from the said order reads as follows: "9. It is further stated in the application that grounds of arrest have been informed to him and intimation of arrest has been given to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neously with his arrest. In the present case, the petitioner was informed of the grounds of his arrest at the time of his arrest itself. 72. In the facts of the present case, the petitioner, in any event, came to be informed of the reasons for his arrest when a detailed application was moved before the learned Special Judge on 26.08.2017, i.e. the day following his arrest, setting out the materials which also virtually contain the grounds of his arrest. The said application was, admittedly, served upon the petitioner on 26.08.2017. The said application under Section 167 Cr.P.C. read with Section 65 PMLA seeking ED custody remand of the petitioner, inter alia, states that: "2. During the course of investigation certain facts, which are based on records have emerged, which prima facie constitute omission and commission of certain acts on the part of certain public servants holding high positions in public office in collusion with Moin Akhtar Qureshi his associates thereby huge amount of illegal money was found to have been transacted. 3. The various records collected from income tax department viz-a-viz BBM message details seized by them for the year 2011 to 2013, the scrutiny of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he has been regularly sending gifts to various Govt. servants holding important and sensitive position who obtained the illegal gratification or pecuniary advantage either themselves or through their kith and kin. 5. The analysis of BBM messages retrieved from Mobile phones of Moin Qureshi and his associates revealed that the Hawala operators were also used to transfer bribe money (belonging to Government officials) to different foreign locations like Paris(France) and UK. The service provider M/s Black Berry, Canada has confirmed the authenticity of the BBM Messagee. 6. Further, in their statement the two witness have confirmed in their respective statements that that they have delivered crores of rupees for Moin Akhtar Qureshi and his associates through his employee Aditya Sharma. 7. One of the witness in his statement stated that approx. Rs. 1.75 Crore have been extorted by Moin Qureshi from him and his friend in lieu of the help provided to him in a CBI Case. 8. Another witness in his statement stated that he had to pay more than 5 crores of rupees to Moin Qureshi as he was extorting money from him for providing help in his family case with CBI through his contact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company Bulova Holding) confirms its ownership." 73. Thus, the petitioner, in any event, became aware of the grounds of his arrest when he and his legal practitioner were provided with a copy of the application under Section 167 Cr.P.C. read with Section 65 PMLA dated 26.08.2017 to seek his ED custody remand. We may again observe that according to the respondents, he was informed of the same by permitting him to read the grounds of arrest against his acknowledgement at the time of his arrest. 74. The submission of Mr. Handoo, premised on the definition of the expression "order" contained in Rule 2(h) of the PML Arrest Rules, in our view, is of no avail for the reason that Section 19(1) nowhere states that the arrestee shall be served with the "order" of arrest, at the time of his arrest by the Competent Authority. Pertinently, the petitioner was served with the "Arrest Memo" at the time of his arrest and not the "order of arrest". Thus, even though the expression "order" may include the grounds of arrest under sub-Section (1) of Section 19 of the Act, the said aspect is of no relevance to the facts of the present case. 75. Thus, we reject the first submission of Mr. Handoo tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also set out hereinabove the further developments which have taken place with regard to the petitioner's remand to ED custody and thereafter to judicial custody. Thus, it is the judicial remand/ custody of the petitioner, which is sought to be assailed in the present writ petition. 78. We have set out in-extenso, the well-settled legal position with regard to maintainability of a writ petition under Article 226 of the Constitution of India to seek a writ of Habeas Corpus in respect of a person who is detained under the orders of a Competent Court. It is equally well-settled by a catena of decisions, taken note of hereinabove, that the earliest date with reference to which the illegality of detention may be examined in a Habeas Corpus proceeding, is the date on which the application for Habeas Corpus is made to the Court, if nothing more has intervened between the date of the application and the date of hearing. The decisions taken note of hereinabove show that, in some cases, it was the date of return in the writ proceedings which was considered as the relevant date to determine as to whether the detention of the arrestee was illegal, while in other cases, the Supreme Court al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplete thorough investigation, ED custody remand of Moin Akhtar Qureshi for five days i.e. 31.08.2017 is granted." 80. Pertinently, though the ED sought the ED custody remand for 14 days, the learned Special Judge granted the same, in the first instance, only till 31.08.2017, i.e. for about 5 days, which also betrays application of mind by the learned Special Judge while passing the order dated 26.08.2017. 81. Similarly, the learned Special Judge while passing the order dated 31.08.2017 allowing the second application under Section 167 Cr.P.C. read with Section 65 PMLA, and extending the ED custody remand of the petitioner till 04.09.2017, passed a detailed order. The order dated 31.08.2017 records the progress made in the investigation viz. "during remand period, seven witnesses have been examined and trail of 12 Crore of quantified proceeds of crime trail has been found". He also records the submission of the ED that: "investigation with regard to properties outside India is also to be conducted and audio recording conversation is to be confronted to the accused and CERT-IN has also been requested with regard to e-mail server. He further submits that there is involvement of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making this order, have been recorded therein and the same reads as follows: " The ED custody of the accused completes today. An application is filed requesting for Judicial Custody remand for 14 days mentioning that investigation is at initial stage and same is pending. Ld. Spl. PP for ED has stated that the statements of public servants, private persons are yet to be recorded and more properties have surfaced acquired from proceeds of crime. He further stated that statement of HAWALA operator is being recorded and release of accused at this stage shall hamper the investigation. On the other hand, ld. Counsel for accused strongly opposed the Judicial Custody remand. He submits that the application for Judicial Custody remand is concealing more facts than revealing. Considering the submissions of the Ld. Spl. PP for ED, Judicial Custody remand of the accused for 14 days is granted till 22.09.2017." 85. On 22.09.2017, the judicial remand of the petitioner was extended by 14 days on the application of the ED. The relevant extract from this order reads as follows: "An application is filed for JC remand of 14 days of accused. It is submitted by the Ld. Special PP t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease 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. 89. Reliance placed by Mr. Handoo on Nawabkhan Abbaskhan (supra) is misplaced in view of the settled legal position, as we have taken note of hereinabove. Similarly, reliance placed on Narayan Dass Indurakhya (supra) and Atma Ram (supra) is also misplaced since, firstly, these decisions relate to cases of preventive detention, and not the case of arrest referable to Article 22(1) of the Constitution and, secondly, it cannot be, prima facie, said that the petitioner was arrested on the basis of vague grounds. We need say no more on this aspect, since these submissions are open to the petitioner to raise while pressing his bail application. There is no question of the ED acting as a judge in its own cause. The ED is the investigating and prosecuting agency. It does not function as the judicial authority. It is the Special C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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