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TMI Blog2022 (11) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Enforcement Directorate treating the abovementioned cases as scheduled offences. 03. Allegation against the present applicant is that on the basis of forged and fabricated documents, the applicant obtained loan from Punjab National Bank, Raipur and Axix Bank, Raipur in the name of his companies namely M/s Hotel Saffaire Inn, M/s Goodluck Petroleum Co. Pvt. Ltd. and M/s Vidit Trading Pvt. Ltd. The said loan amount of Rs.31.37 crores was subsequently declared as NPA by the concerned banks and the same is to be recovered from the applicant. 04. Learned counsel for the applicant submits that custody of the applicant is unconstitutional and criminal, hence illegal from the very inception and therefore, he deserves to be enlarged on bail. During the entire course of investigation starting from 3.10.2019 to 5.3.2022, the applicant duly appeared and joined the investigation on each occasion as and when required by the investigating agency. As such, there is no apprehension of his evading the due process of law. He submits that the Look Out Circular (in short LOC") dated 4.10.2019 was issued in an arbitrary and malafide exercise of power by the ED. The requirement of issuing LOC i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs before the remand court on 6th March, 2022 and as such, there is no question of violation of any constitutional right of the applicant. The applicant is a frequent foreign traveller and hence a LOC was issued against him assuming that he may attempt to flee away from the country. The said LOC was renewed from time to time. During investigation, the applicant did not cooperate and had always given vague, evasive and misleading reply regarding utilization of loan proceeds, their diversion through shell entities and their utilization in other businesses. 07. It is submitted that grant of bail to the applicant in connection with FIRs No.97/2015, 272/2018 and 141/2018 holds no relevance because the proceedings under the PMLA being a special enactment, contemplate a distinct procedure. It may extend to a person, who is connected with criminal activity relating to scheduled offence, but may not be the offender of the scheduled offence. The properties registered in the name of the applicant and his family members including investments made by his companies were attached being the proceeds of crime after following the due process of law. The applicant is a high flight risk person and me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Article 22 of the Constitution of India reads as under: "22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may 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. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate." 13. The Hon'ble Supreme Court in the matter of Manoj Vs. State of MP, MANU/SC/0231/1999, held in para 10, 13 & 14 as under: "10. The police officer who conducts investigation cannot obviate the legal obligation to perform two requisites if he knows that investigation cannot be completed within 24 hours after the arrest of the accused. One requisite is, to transmit a copy of the case-diary to the nearest Judicial Magistrate. The other is, to forward the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure. The Prosecution urges that after the "arrest" they were not detained beyond 24 hours. This submission is a distortion of the true meaning of the constitutional guarantee against detention without the sanction of judicial Tribunal. The word "arrest" has not been defined in the Code of Criminal Procedure or in any other law. The true meaning needs to be understood. The word "arrest" is a term of art. It starts with the arrester taking a person into his custody by action on or words restraining him from moving anywhere beyond the arrester's control, and it continues until the person so restrained is either released from custody or, having been brought before a Magistrate, is remanded in custody by the Magistrate's judicial act Christie v. Leachinsky, (1947) 1 All ER 567; Holgate Mohammed v. Duke, (1984) 1 All ER 1054. Both quoted in WORDS AND PHRASES LEGALLY DEFINED Vol. 1, Third Edition - page 113.). In substance, "arrest" is the restraint on a man's personal liberty by the power or colour of lawful authority (The Law Lexicon - P. Ramanatha Aiyar Reprint Edition 1987, page 85). In its natural sense also "arrest" means the restraint on or deprivation of on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detained, not allowed to leave the office of the respondent and compelled to eat and sleep there, he is under detention. This restraint is in reality an arrest. The investigating agency could have easily produced the applicant herein before the competent court at Delhi itself and asked for transit remand but they detained the applicant and brought him to Raipur where the arrest memo was prepared. 16. Learned counsel for the respondent/ED submitted that the PMLA is a very special Act. There is documentary evidence on record to show that the applicant misappropriated crores of rupees and caused great loss to the State Exchequer and the community at large. So, under the PMLA the applicant is not entitled to be released on bail. 17. From the order sheets of the trial Court as well as the documents in the case diary, it is clear that the applicant is not produced before the competent Court within 24 hours of his detention. Charge sheet/complaint has been filed before the learned trial Court. As per order sheet dated 2.5.2022, the case is at preliminary state for argument before registration. Looking to the number of documents and list of witnesses, there is every likelihood that conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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