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TMI Blog2022 (6) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... he court before which he was produced. The Petitioner was already in judicial custody in Kolkata. Therefore, the Respondent authority could not have directly arrested the Petitioner. On 22.12.2021, the Respondent sent a copy of the petition under Section 267 of the Cr.P.C. r/w Section 50 of the PMLA to the Superintendent, Presidency Correctional Home, Kolkata to be served upon the Petitioner herein. In the said petition, the Respondent authority stated that the Petitioner has been arrested under Section 19 of the PMLA. The said petition was served upon the Petitioner on 23.12.2021and was duly acknowledged by him. The custody of the Petitioner could only be sought after he was produced pursuant to the P.T. warrant under Section 267 of the Cr.P.C. Once he was produced, the trial court considered the fact that he was formally arrested in prison and considering the application under Section 167 of the Cr.P.C. remanded him to judicial custody. According to this Court, there is no illegality in the impugned order dated 11.02.2022 remanding the Petitioner. The only question before this Court was whether the impugned order dated 11.02.2022 remanding the accused was illegal. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear on 15.06.2016. According, to the Petitioner he had duly replied to all the summons. iii) Subsequently, on 04.04.2018 the Petitioner and his son were apprehended at the Kolkata airport by the DRI, Kolkata for allegedly diverting the consignment of jewellery meant for exports to his father. DRI, Kolkata initiated proceedings against the Petitioner under the Customs Act, 1962 and he was remanded into judicial custody. While things stood thus, a preventive detention order was passed under the Conservation of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act, 1974 against the Petitioner. The same was ultimately quashed by the Supreme Court. iv) The Petitioner obtained a regular bail in the proceedings initiated by the DRI, Kolkata. Subsequently, the proceedings initiated by the DRI, Kolkata were challenged by the Petitioner s wife before the Supreme Court. v) Subsequently, on 29.03.2019 and 18.12.2020 show cause notices were issued by the DRI, Kolkata under the Customs Act, 1962 to the Petitioner and his family members. Further, proceedings under the Customs Act, 1962 were also initiated by the DRI, Hyderabad by issuing summons dated 30.10.2019. The pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.T. warrant was allowed in relation to ECIR/HZO/08/2012 and the Superintendent, Presidency Correctional Home, Kolkata was directed to produce the Petitioner on or before 19.01.2022. Similarly, a P.T. warrant was also issued in relation to C.C. 40 of 2018 registered by the CBI and the Petitioner herein was directed to be produced before the CBI Court on 19.01.2022. xi) While things stood thus, the Petitioner herein vide Crl.P.No. 418 of 2022 challenged the order dated 03.01.2022 passed in ECIR/HZO/08/2012 allowing the P.T. warrant. However, the matter was disposed as infructuous as the Petitioner was already produced in C.C. No. 40 of 2018. However, liberty was granted to the parties to take necessary steps in accordance with law. In the said case, an application under Section 167 of the Cr.P.C. was filed and the Petitioner was remanded to judicial custody for fourteen (14) days. xii) It is relevant to note that the Petitioner was only produced in C.C. No. 40 of 2018 on 19.01.2022. He was not produced in ECIR/HZO/08/2012 on 19.01.2022. According to the Respondent herein, after his production in C.C. No. 40 of 2018, the Petitioner complained of severe heartache. He was rushed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 seeking to quash the proceedings in ECIR/HZO/08/2012. iii) The order passed by this Court in Crl.P.No. 418 of 2022 was also not placed on record when judicial remand of the Petitioner was sought. Further, the orders dated 02.02.2022 and 22.02.2022 passed in C.C. No. 40 of 2018 and C.C. No. 23 of 2018 granting bail to the Petitioner in the scheduled offences by the XXI Additional Chief Metropolitan Magistrate - cum - Spl. JMFC for Trial of CBI Cases were also not placed on record. iv) The arrest of the Petitioner is illegal and Section 19 of the PMLA was not complied with. Section 19 casts a heavy burden on the Respondent authority to satisfy that the person is guilty of the offence of money laundering. The Respondent has failed to discharge the burden and the judicial custody of the Petitioner is tantamount to arrest without the compliance of Section 19 of the PMLA. Reliance was placed on Directorate of Enforcement, represented by its Assistant Director, Hyderabad Zonal Unit v. Kamma Srinivass Rao Crl.P. No.9825 of 2021 batch, decided on 15.02.2022 rendered by the High Court for the State of Telangana and Rajbhushan Omprakash Dixit v. Union of India W.P. (Crl) 363/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments. The obtained gold was sold in the open market which resulted in the Petitioner earning huge profits as payment of custom duty was evaded. It is suspected that the Petitioner diverted the sale proceeds of the illegally obtained gold to other companies controlled by him. Prima facie, a case of money laundering is made out against the Petitioner. iii) Summons were issued to the Petitioner on various dates. But he only appeared on 26.11.2014. He did not appear when subsequent summons were issued and failed to provide any documentary proof of his business dealings. iv) Under Section 267 of the Cr.P.C., P.T. warrants can be issued to any detained person in the course of inquiry, trial or other proceeding, The term other proceedings cannot be restrictively interpreted and Section 267 can be resorted to produce the accused for the purpose of investigation. Once arrest is shown, the courts have the power to invoke Section 267 of the Cr.P.C. Reliance was placed on C. Natesan v. State of Tamil Nadu 1999 Crl.L.J. 1382. v) The scheme under PMLA does not require supplying of the copy of the ECIR to the accused. vi) The writ petition W.P. (Appellate) No. 8318 of 2018 bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a. ii) Section 267 provides a procedure to deal with a person who is alleged to have committed various offences. Section 267 of the Cr.P.C. contemplates a procedure where the court can require the presence of a person who is detained or confined in any other offence in any other jurisdiction. The investigation officer/agency may file an application under Section 267 of the Cr.P.C. for issuance of a P.T. warrant directing the prison authorities where the accused lodged to be produced before the court in a case other than the one in which he is already in custody. iii) Once the person is produced before the court pursuant to the issuance of the P.T. warrant, a question arises whether such a person can be again sent to judicial custody under Section 167 of the Cr.P.C. by the court before which he was produced. In other words, a question arises whether a person, who is already in judicial custody in one case, on production before another court under Section 267 of the Cr.P.C. can he be again remanded to judicial custody under Section 167 of the Cr.P.C. The said question was examined and explained by a Division Bench of the Andhra Pradesh High Court in Attained Riswan v. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this, to note that in every arrest, there is custody but not vice versa and that both the words custody and arrest are not synonymous terms. Though custody may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi. 13. From a reading of the judgment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for seeking bail. XXX 18. In the instant case, the grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on P.T. warrant without effecting his arrest and that the accused is being remanded on P.T. warrant, contrary to provisions of Section 267 Cr.P.C. 19. A Division Bench of the Madras High Court in State by Inspector of Police v. K.N. Nehru (Crl.O.P.(MD) No. 13683 of 2011, dated 3-11-2011) while dealing with an identical situation observed as under: In a case where the police officer deems it necessary to arrest when the accused is already in judicial custody in connection with a different case, in our considered opinion, there are two modes available for him to adopt. The first one is that, instead of effecting formal arrest, he can very well make an application before the Jurisdictional Magistrate seeking a P.T. warrant for the production of the accused from prison. If the conditions required under 267 of the Code of Criminal procedure, are satisfied, the Magistrate shall issue a P.T. Warrant for the production of the accused in court. When the accused is so produced before the Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 19 of the PMLA and the requirements to be satisfied before arresting any person. The relevant paragraphs are extracted below: 24. Section 41 of the Cr.P.C. provides that police officers have the power to arrest a person, inter alia, on the grounds of reasonable complaint or reasonable suspicion. Section 41-A of the Cr.P.C. states that, in cases of cognizable offences, where the arrest of person is not required under Section 41(1) of the Cr.P.C., the police officer shall issue a notice directing the person to appear before him and cooperate with the investigation. If the person fails to comply the notice requirements, he may be arrested. Even if the person complies with the notice, if the police officer is of the opinion that the person's arrest is required, he may arrest the person by recording the reasons for such arrest. However, the procedure for arrest under PMLA is different. Under Section 19 of the PMLA, the Director, Deputy Director, Assistant Director or any other authorised officer can make an arrest. The officer making an arrest should satisfy the following conditions: a. The officer should have a reason to believe that the person has been guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent authority had made a formal arrest. The custody of the Petitioner could only be sought after he was produced pursuant to the P.T. warrant under Section 267 of the Cr.P.C. Once he was produced, the trial court considered the fact that he was formally arrested in prison and considering the application under Section 167 of the Cr.P.C. remanded him to judicial custody. According to this Court, there is no illegality in the impugned order dated 11.02.2022 remanding the Petitioner. xii) The other contentions raised by the Petitioner relate to abuse of process and non-consideration of orders passed in Crl.P.No. 1130 of 2022 and W.P. No. 9926 of 2021. This Court has perused the prayers in the said petitions and the orders granted therein. There is no order in the said petitions staying the investigation or proceedings in ECIR/HZO/08/2012. The contention of abuse of process and a delay of five years in issuing summons cannot be accepted as the same grounds have been taken in W.P. No. 9926 of 2021 seeking to quash the entire proceedings in ECIR/HZO/08/2012. 7. Conclusion: i) The only question before this Court was whether the impugned order dated 11.02.2022 remanding the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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