9911796707
TMI Blog2017 (12) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was produced before the learned Special Judge, CBI at 3:00 p.m. when the respondent sought his remand without giving him either a copy of the ECIR, or the grounds of arrest, or even the remand application. Only on the directions of the learned Special Judge issued during the proceedings, he was provided with a copy of the remand application, but not the grounds of arrest, or copy of the ECIR. The learned Special Judge, CBI remanded the petitioner to the custody of the respondent ED till 31.08.2017. 6. Consequently, the petitioner preferred the present writ petition dated 29.08.2017. It was listed before the Court on 30.08.2017 when the respondents appeared through Mr. Anil Soni, CGSC and Mr. Amit Mahajan, CGSC for UOI. They were granted time for filing their reply within five working days, with advance copy to counsel for the petitioner. The petitioner was permitted to file the rejoinder within three working days thereafter. The matter was adjourned to 13.09.2017. 7. On 13.09.2017, the matter was further adjourned to 09.10.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrate s Court . (emphasis supplied) 10. For the sake of convenience, the expression Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government by general or special order used in Section 19(1) aforesaid shall be referred to as the Competent Authority . 11. Mr. Handoo submits that Article 22(1) obliges the arresting officer to inform the person arrested and detained in custody, as soon as may be, of the grounds for such arrest. The other two facets of Article 22(1) are that the person who is arrested shall not be denied the right to consult a legal practitioner of his choice, and to be defended by a legal practitioner of his choice. Mr. Handoo submits that the information of the grounds of arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 it does not tantamount to effective and actionable information, on the basis of which the petitioner could have consulted a legal practitioner or to effectively defend his liberty through his legal practitioner. 13. Mr. Handoo has referred to the petitioners pleadings contained in para 41 and 42 of the petition, wherein the petitioner has made a categorical averment that he was arrested without communicating to him, or giving him, a copy of the grounds of arrest and he was asked to append his initials as READ , without allowing him to understand and comprehend the grounds formulated for his arrest. 14. Mr. Handoo submits that it was not even the case of ED before the learned Special Judge, CBI that a copy of the ground of arrest was served on the petitioner at the time of his arrest, or even soon thereafter. In this regard, he has drawn the attention of the Court to para 11 and 12 of the order dated 26.08.2017, which reads as follows: 11. Sh. R.K. Handoo, ld. Counsel for the accused h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. 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 reasonable belief; secondly, he should have reason to believe which is recorded in writing, that the person has been guilty of an offence punishable under the Act; thirdly, he may , and not shall , arrest such person, and; fourthly, he shall, as soon as may be, inform him of the grounds for such arrest. 18. Mr. Handoo submits that the order of arrest, by virtue of Rule 2(h) of the PML Arrest Rules, includes the grounds for such arrest under section 19(1) of the Act. Therefore, it is imperative that the grounds of arrest, which form part of the order of arrest, are served on the person arrested under Section 19(1) of the PMLA along with the order of arrest. Without the ground of arrest, the order of arrest is incomplete. Without the grounds of arrest, the arrestee would not know what is that material, on the basis of which the Competent Authority has formed his belief that the arrestee is guilty of the offence under the Act. He would also not know the reasons wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., 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 enable the detained person to make a representation at the earliest opportunity. The Division Bench also referred to Magan Lal Jivabhai, in re:, AIR 1951 Bom 33 (D), wherein it was held that the only possible and reasonable construction that can be put upon the language of Article 22(6), is that the detaining authority while furnishing grounds of detention is required to state the facts on account of which he is satisfied that the detention is necessary in the interest of the security of the State, maintenance of public order etc. The Division Bench further observed in para 30 to 32 of Vimal Kishore Mehrotra (supra) , as follows: 30. Under Cl. (1), the ground for arrest has to be communicated to the person arrested. Under Cl. (5) the grounds on which the order of detention has been made has to be communicated to the person detained. So decisions of Courts under Cl. (5) of Article 22 will be of much assistance in interpreting Cl. (1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was given to him. Section 7 is a wide section containing several provisions and he was not informed under which particular provision he was arrested. Nothing was said to him about the allegation made against him or the act alleged to have been done by him and amounting, to an offence punishable under Section 7. 43. The rule in Article 22(1) that a person on being arrested must be informed of the grounds for the arrest is similar to, though not exactly identical with, the rules prevailing in England and in United States of America. The rule prevailing in England is that in normal circumstances an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a charge made known to the person arrested ; (per Viscount Simon L.C. in - Christie v. Leachinsky (1947 AC 573 at p. 586(F). (emphasis supplied) 24. Mr. Handoo also refers to the decision of the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout 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 constitutional infirmities. This disposes of the third contention of Madhu Limaye. (emphasis supplied) 26. Mr. Handoo has also drawn our attention to Kanu Sanyal v. District Magistrate, Darjeeling Ors., (1974) 4 SCC 141 . The legality of the arrest and detention in this case was challenged on three grounds. The first two grounds taken note of in para 3 of the decision read as follows: 3. The learned Counsel appearing on behalf of the petitioner put forward three grounds challenging the legality of the detention of the petitioner and they may be briefly summarised as follows: A. The initial detention of the petitioner in the District Jail, Darjeeling was illegal because he was detained without being informed of the grounds for his arrest as required by clause (1) of Article 22 of the Constitution. B. The Sub-Divisional Magistrate, Darjeeling had no jurisdiction to try th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs . 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 these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legality of the detention on the date of hearing. All these three views were considered in case of Kanu Sanyal Vrs. Dist. Magistrate reported in AIR 1974 SC 510 wherein it was held that the second view (i.e., detention at the time of return) appears to be more in consonance with the law and practice in England and has received largest measure of approval in India. The third view (i.e. on the date of hearing) cannot be discarded as incorrect because an inquiry whether the detention is legal or not at date of hearing of the application for habeas corpus could be quite relevant, for simple reason that if on that day the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. The learned Advocate General places reliance in case of Manubhai Rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 flouting the said order. The Supreme Court held that the externment order was an encroachment on the petitioners fundamental right under Article 19 of the Constitution of India, since the Commissioner of Police had passed the same without due hearing. Resultantly, the same had been quashed by the Court as unconstitutional and void. Consequently, the appellant was held never to have been guilty of flouting an order, which never legally existed. Mr. Handoo has placed reliance on this decision to submit that, similarly, the arrest of the petitioner was void ab initio, since the same did not comply with Article 22(1) of the Constitution of India. Consequently, the arrest and consequent detention of the petitioner could not be validated by the subsequent order of remand pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 communication, the CBI had registered the aforesaid FIR RC No.224/2017 dated 16.02.2017 under Section 8, 9, 13(2) read with 13(d) of the Prevention of Corruption Act (PC Act) and Section 120B IPC. 33. Mr. Handoo, lastly, submits that there was no justification for the petitioners arrest, since he had been cooperating and appearing in response to the summons issued to him practically on all the dates. 34. On the other hand, Mr. Amit Mahajan, learned counsel representing the ED submits that Article 22(1) obliges the authority concerned who is arresting a person and detaining him in custody, to inform such arrested person, as soon as may be, of the grounds of his arrest. He submits that Article 22 also deals with preventive detent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 alleging commission of offence under Section 3 read with Section 4 of the PMLA. The Special Court took cognisance of the offence under the PMLA and summoned the accused. 38. The petitioner Chhagan Chandrakant Bhujbal had advanced the submission before the Division Bench that the grounds of arrest were not communicated to him in writing and, therefore, his fundamental rights under Article 22(1) and Section 19 of the PMLA had been breached. The Division Bench rejected the said submissions by observing as follows: 189. As regards the Petitioner's grievance that the grounds of arrest were not communicated to him in writing, this grievance also cannot be accepted to hold the breach of any statutory safeguard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, 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 full particulars of the offence for which he is arrested, and of the grounds for such arrest, was rejected by the learned Single Judge of the Bombay High Court in the following manner: 12. Now as far as the contention of Shri Merchant regarding the requirement of provisions of Section 50 of the Code of Criminal Procedure being interpreted in the light of provisions of Article 22(5) is concerned, I think the submission cannot be accepted. There is basic and fundamental difference between the person detained under the provisions of law providing for preventive detention and detention of person arrested on accusation of commission of an offence. In the case of preventive detention the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 full particulars of the offence for which he is arrested . An act can be said to be done forthwith if it is done with all reasonable dispatch and without avoidable delay. It can also be interpreted to mean as soon as possible without any delay. ... ... ... Further in the remand application full particulars of the offence are disclosed and admittedly this remand application is made at about 11.00 a.m. on 27th of October 1987. Copy of the panchanama disclosing further details was also admittedly served upon the accused within 24 hours. If these glaring facts are taken into consideration the plea of the accused on the next day before the learned Magistrate that they were not communicated the ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned 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 that the Metropolitan Magistrate had no power to remand the petitioner in judicial custody for a period more than 15 days in all, whether the illegal detention of the petitioner under the remand orders made by the Metropolitan Magistrate from time to time entitles the petitioner to be released forthwith even though during the pendency of this writ petition, after the filing of the return, the petitioner is being remanded to judicial custody validly during the trial of the case by the Additional Sessions Judge. In other words, the question to be decided is whether the validity of the detention of the petitioner is to be determined on the day of the return or even on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpus 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 prisoner must be justified is the time at which the court considers the return to the writ. This rule means that nothing which has happened before the present cause of detention took effect will be relevant to the issue before the court, unless by reason of some special consideration arising from the particular proceedings .The general rule is that unless prior illegality vitiates the present cause of detention, it will not matter what has happened to the prisoner so long as his detention is now justified .A prisoner may apply for a writ from the very moment of his arrest and in that sense, he may challenge the legality of his arrest. However, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 in 1951 and fresh order dated May 17, 1951 was issued. The only question which arose for decision was that even if the detention of the petitioner was bad on the date of the institution of the proceedings against him, whether he could be released on that basis, even though his detention becomes valid by issuance of a subsequent order and in that context, the Court held that the validity of the detention is to be seen at the time of the return and not with reference to the date of the institution of the proceedings. 40. The question which is posed before us had not come up for consideration before the learned Judges of the Supreme Court that if the deten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 Supreme Court held that the detenues were entitled to be released forthwith. So, it is evident that even upto the date of hearing the authorities had failed to satisfy the Supreme Court from the record that the detention of said persons was valid. So nothing said in this judgment supports the contention that the Supreme Court has categorically laid down a proposition of law that detention of a particular person is to be shown valid only upto the date of the filing of the return to the show cause notice issued in a habeas corpus petition. 43. In A.K. Gopalan v. Government of India, A.I.R. 1966 Supreme Court 816 , the Supreme Court has categorically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Niranjan Singh Nathawan (supra) were followed. Again, this judgment does not deal with the legal proposition which has arisen for decision before us. So, we need not say anything more on this point. 47. In Kanu Sayal v. District Magistrate, A.I.R. 1974 Supreme Court 510 , the learned Judges did refer to the question whether detention can be justified upto the date of hearing or not but the question was left open for decision in any other appropriate case which may come for consideration. So, nothing said in this judgment supports the contention that even though the detention of a particular person becomes valid due to subsequent ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be and since it was found that the grounds were not communicated forthwith, hence the Bench found that the detention of the petitioner was rendered illegal. The argument of the State that subsequent knowledge had cured the initial illegality was negatived by holding that the petitioner had the fundamental right to be informed of the grounds of his arrest as soon as could be possible. It may also be noted that Hon. Judges of the High Court also observed that although it was possible that the release of the petitioner in the said case could be very short lived because he might be arrested again after full compliance of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 be validated even at a subsequent stage cannot be accepted. 49. The petitioner s reliance on two other decisions of the Allahabad High Court in Hazari Lal Vs. State of U.P., 1991 Lucknow LJ 230; and Ashok Kumar Singh Vs. State of U.P., 1987 Lucknow LJ 273 wherein the Court had held that non-fulfilment of the requirements of the provisions of Article 22(1) 22(2) of the Constitution results in an incurable illegality to which the doctrine of curability cannot extend, was rejected and these decisions, and the decisions on which reliance had been placed in these decisions, were overruled. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 have been committed is also not so serious as to probabilise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously. (emphasis supplied) 52. The submission of Mr. Mahajan is that the Supreme Court, therefore, once again upheld the principle that a writ of Habeas Corpus would be misplaced, where the arrestee is an accused facing prosecution for off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appear to be without jurisdiction or wholly illegal. Even the Judgment in the case of Madhu Limaye (supra) also makes it clear that it has to be shown that the arrest made by the Police Officer was illegal and further it has to be established that, at the stage of remand, the Magistrate directs detention in the custody without applying his mind to all the relevant matters. As held in the said authority, if the orders of remand are passed by the Magistrate without application of mind and they are patently routine and appear to have been made mechanically, then only, such orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus, viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law. 56. The Division Bench in Chhagan Chandrak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gular 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 on the arrestee under Section 19 of PMLA. 60. We have considered the rival submissions of the parties. Mr. Handoo has placed reliance on Vimal Kishore Mehrotra (supra) a Division Bench judgment of Allahabad High Court, and in particular on paragraph 30 of the said decision in support of his submission that decisions of Courts under clause (5) of Article 22 will be of much assistance in interpreting clause (1) of Article 22. However, this decision in Vimal Kishore Mehrotra (supra) stands overruled by the Full Bench decision of the same Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 his choice. The purpose of information of the grounds of arrest is to enable him to apply for his release on bail when he is produced before the Magistrate. Therefore, the principles laid down and decisions rendered in cases of preventive detention and under Article 22(5) of the Constitution of India cannot be pressed into service for appreciating the ambit and scope of provisions of Section 50 of the Code of Criminal Procedure. Communication referred to in Section 50 of the Code of Criminal Procedure need not be, in every ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 possible offence/ crime in which the arrestee may be suspected to be involved and, on the other hand, it deals with the aspect of preventive detention. Article 22 itself draws a distinction between the manner in which the aforesaid two situations would be dealt with. The safeguards provided to the arrestee/ detenue in the case of his arrest/ preventive detention are distinct, and it may not be advisable to interpret the scope and extent of the safeguards provided in respect of arrest, or prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 case of an arrest referable to Article 22(1), when a person is preventively detained under Article 22(5), there is no obligation on the State to produce the detenue before the nearest Magistrate within 24 hours of detention. The law does not mandate the obtainment of the sanction of the Magistrate, or any other judicial authority for continued detention of the detenue beyond the period of 24 hours. The only immediate right available to the detenue is to make a representation against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 his wife on her mobile phone and the copy of arrest memo has been delivered to him. 10. The application details grounds from a) to l) for ED custody remand of the said Moin Akhtar Qureshi for 14 days. 11. Sh. R.K. Handoo, ld. Counsel for the accused opposed the application vehemently. He has argued that the accused has not been informed of the grounds of his arrest. Further, he has argued that ED has no power to seek custody of the accused. Further, he has also argued that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 which has revealed that Moin Akhtar Qureshi has taken huge amount of money from different persons for obtaining undue favours from public servants at the extant time after exercising his personal influence by using corrupt practices through illegal means, thereby influencing them. 4. Also, various incriminating documents which have been recovered during our searches at various premises of Moin Akhtar Qureshi and his associates (under the FEMA) revealed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocations 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. ₹ 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 in CBI. These conversations of Moin Qureshi and his employee Aditya Sharma are evident to prove the exchange of Money transactions among themselves. 9. Further analysis of BBM messages revealed that Rajesh Sharma resident of Mumbai, involved in Loan-for- Bribery Scam unearthed by CBI in 2010 was also seeking favour of CBI through Moin Akhtar Qureshi. 10. Moin Qureshi was found involved in Hawala Transactions through D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 that the arrest of the petitioner under Section 19(1) of the PMLA itself was illegal. We are of the view that the grounds of arrest were duly informed to the petitioner at the time of his arrest, as well as soon thereafter i.e. on the following day, in the form of the remand application moved before the learned Special Judge. 76. The further submission of Mr. Handoo premised on paragraph 15 of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 also observed that the issue would have to be determined by reference to the position emerging on the date of hearing of the petition. The Full Bench of this Court in Rakesh Kumar (supra), after a detailed analysis of the earlier decisions, including the decisions in Madhu Limaye (supra), Kanu Sanyal (supra), Niranjan Singh Nathawan (supra), Ram Narayan Singh (supra), A.K. Gopalan (supra), Pranab Chatterjee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.08.2017. 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 Shell Companies, it is not a case of single transaction and law provides fourteen days police custody 82. The reason given by the learned Special Judge while granting further ED custody remand till 04.09.2017, as found in the order dated 31.08.2017, reads as follows: 7. At this stage, when the matter is at the stage of investigation only, the question raised by learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, 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 that during investigation, the statement of witnesses have been recorded and they have been confronted with various bank records, mobile forensic reports and technical surveillances. Let us (sic- letters) have been issued to banks and different government agencies to provide records. The hard disk data in respect of e-mails ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Court which exercises the judicial functions. Thus, there is no question of the ED acting as a judge in its own cause. 90. 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
