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TMI Blog2023 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... pointers of legality or otherwise with regard to the initial detention, when there is a subsequent order making the detention as legal, in the application for Habeas Corpus, the Court is not concerned with the same. The Hon ble Supreme Court of India in Serious Fraud Investigation Office s case [ 2019 (3) TMI 1411 - SUPREME COURT ], while considering the ex post facto extension granted by the Central Government, by which only, the Agency had jurisdiction to proceed further, considered the issue in detail and held that the Habeas Corpus Petition will no longer be maintainable once there is an Order authorising judicial custody as the custody is the pursuant to the custodial judicial function exercised by a competent Court. A petition for Habeas Corpus agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality. Whether the petitioner herein had made out a case for exercise ofpowers under Article 226 of the Constitution of India to set the detenu free? - Violation of Article 22(1) - HELD THAT:- From the very nature of the allegations in this case that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at when the objections are raised in the petition to reject the remand, the said petition ought to have been considered while making the order of remand and it was incumbent on the part of the learned Presiding Officer to apply his or her mind in respect of those objections and if those objections are found to be genuine or valid, then the remand should be refused and if the objections are liable to be rejected, then the remand should be authorised. Even though a petition for objections has been taken up subsequently, all the substantive allegations of non-information of the grounds, non-existence of prima facie case and other concerns were independently considered by her which reflects in the order of remand and therefore, the violation complained is only of procedure and becomes technical in nature, as there is substantive application of mind in the order of remand. Therefore, in this context, even though, the submissions of the learned Senior Counsel agreed upon that the procedure adopted by the learned Pricipal Sessions Judge could have been better, substantive compliance relating to the application of mind as to the compliance of the Article 22 of the Constitution of India, Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , was unwell and it was due to his Coronary Artery Disease. The reason is attributable not to the Enforcement Directorate. Similarly, not permitting him in the custody for interrogation, is only taking into consideration of his own health and his health condition so that he will not be put to undue stress when he is ailing from a serious disease and post operative care. In such circumstances, when the first 15 days goes in the Hospital for his own benefit, then the benefit of custodial interrogation cannot be denied in its entirety to the respondents Enforcement Directorate. By the interim order dated 15.06.2003, this Court, based on the medical reports of the detenu, had agreed that the detenu needs emergency medical treatment and ordered shifting to Cauvery Hospital for treatment. As a matter of fact, the respondents Enforcement Directorate had every right to feel aggrieved by our interim order and also to approach the Hon ble Supreme Court for redressal and has been rightly done so in this case. But, at the same time, the custody was also pressed on the next day. Had the learned Principal Sessions Judge, Chennai had granted the prayer, then virtually, it would amount to overruli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 48 years before this Court and set him free. 1.2) The petitioner is the wife of the detenu in CC Nos.19, 24 &25 of 2021 on the file of the Learned Additional Special Court against MP/MLA for offences under Sec 406, 409 420, 506 (1) read with Sec 34 of the Indian Penal Code. 1.3) The allegation against the detenu is that, during 2014, while officiating as a Transport Minister in the Government of Tamil Nadu, he had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. On the basis of the said offences, a case is now registered by the Enforcement Directorate under Sec 4 of the PMLA, 2002 and he was arrested at about 1.30 AM on 14.06.2023. 1.4) The petitioner complains that Notice under Sec 41-A CrPC was not issued to him and the grounds of arrest was not informed to him at the time of arrest and he was not permitted to avail the right to consent a legal counsel in violation of Article 22 (1) of the Constitution of India necessitating this Petition. 1.5) The petitioner alleges that the Officers descended into his official house of the detenu without notice at about 7.30 AM on 13.06.2023 and started interrogating him for about 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to invoke the extra ordinary jurisdiction of this court under Article 226 of the Constitution of India. 2. Counter Affidavit of the 1st Respondent:- 2.1) The first respondent submits that the Habeas Corpus Petition is notmaintainable in law and on facts as the alleged detenu can, by no stretch of imagination, be considered as in illegal detention as he is in Judicial Custody pursuant to an order of Remand passed by the Learned Special Court for PMLA cases by an order dated 14.6.2023. 2.2) The 1st Respondent submits that the Central Crime Branch, Chennai, had invoked the provisions of Indian Penal Code (IPC) and Prevention of Corruption Act (PC Act), which are Scheduled Offences to Prevention of Money Laundering Act (PMLA). As it appeared prima facie that Sh. V.Senthil Balaji & ors had acquired proceeds of crime as defined u/s. 2(1)(u), 2(1)(v) and 3 of PMLA, by commission of scheduled offence, an Enforcement Case Information Report (ECIR) bearing No. ECIR/MDSZO/21/2021 dated 29.07.2021 was recorded by the Respondent Department and investigation under the provisions of PMLA was initiated. 2.3) The first respondent submits that based on the reasons to believe that Sh. V Senthil B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Person Along With The Material To The Adjudicating Authority and Its Period of Retention) Rules, 2005. Communication of information of arrest to his relatives: 2.7) The 1st respondent submits that at the time of arrest he was informed of the grounds of his arrest and the grounds of arrest were specifically read over to him but he has refused to acknowledge and refused to sign. Therefore, the arrest order/memo was executed in the presence of two independent witnesses. While arresting Sh. V Senthil Balaji, the guidelines laid down by the Hon'ble Apex Court in the case of DK Basu were fully complied without any omission and also scrupulously followed the ingredients of the Article 22 of Constitution of India. 2.8) The 1st respondent submits that, immediately after the arrest 1.39 am, the Respondent had duly complied with the Constitutional requirements such as intimation of grounds of arrest to the Petitioner's husband and intimation of arrest to the Petitioner herein as well. There were no relatives of detenu staying at the premises. It is said relatives of detenu were at Karur and the detenu alone was staying at his official residence on the given day However, the Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Court in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. 2022 SCC OnLine SC 929. In the said judgment arguments were advanced on the side of the petitioners/accused that section 19 of PMLA was violative of Article 21 and 22 of the Constitution of India as there was no mandate to comply with the mandatory requirements under the Code of Criminal Procedure was negatived by the Hon'ble Supreme Court. The Hon'ble 3 Judges Bench held that section 19 of PMLA was not unconstitutional and had all inbuilt safeguards and procedures which comply with Article 22 of the Constitution of India. In para 325, the Hon'ble 3 Judges Bench has categorically held provisions of Criminal Procedure Code are not comparable to the provisions of PMLA and PMLA stands on a different footing. In the light of the said judgment, the argument that the provisions of the Criminal Procedure Code have not been followed before effecting arrest is misconceived and is untenable, that too in a Habeas Corpus Petition and the Habeas Corpus Petition is therefore not maintainable and deserves to be dismissed. Further, the Hon'ble 3 Judges Bench of Hon'ble Supreme Court in Vijay Madanlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the accused was already remanded to Judicial custody. After hearing, the Bail petition was dismissed by the Ld. Principal Sessions Judge vide its order dated 16.06.2023 holding as follows; "11………...Now, the court has to consider that whether the Investigating Agency has fulfilled the conditions as per Sec. 19 of PMLA or not? Sec. 19 of the PMLA requires certain conditions to be fulfilled prior to the arrest. In particular, the authorised officer on the basis of materials in his possession has to record the reasons to believe in writing in the File. The respondent has complied the said condition by recording his reason to belief in writing and it is available in File and a copy of the same has been produced before this court. Proof has also been produced to show that the Deputy Director of Enforcement Directorate has been authorised to investigate the matter. Another aspect of Sec. 19 of PMLA is the communication of the grounds of arrest to the accused and a mere communication of grounds of arrest would not suffice and the authorised officer has to record his reasons to believe in writing and it has to be communicated to the detenu. But, the accused in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt places reliance on the Judgment of the Hon'ble Supreme Court in the case of Serious Fraud Investigation Office vs. Rahul Modi (2019) 5 SCC 266, where it was held as follows: "21. The act of directing remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition. The first question posed by the High Court, thus, stands answered. In the present case, as on the date when the matter was considered by the High Court and the order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there was also an order of extension passed by the Central Government on 14-12-2018. The legality, validity and correctness of the order or remand could have been challenged by the original writ petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent appellate or revisional forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After goi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.06.2023in Crl.M.P.No. 13572 of 2023 for 8 days from 16.06.2023 to 23.06.2023,with the following conditions. i. "The Deputy Director of Enforcement Directorate shall not remove the accused from the Kaveri Hospital, who has been admitted for treatment. ii. The Deputy Director of Enforcement Directorate shall interrogate the accused at the hospital by taking into consideration of his ailments and the treatment given to him in the hospital after obtaining necessary opinion from the team of Doctors, who are giving treatment to him about his fitness for interrogation iii. The Deputy Director of Enforcement Directorate interrogate the accused without any hindrance to the health conditions of the accused and also the treatment provided to him..." 2.16) The 1st respondent submits that accordingly. immediately by an e-mail communication a medical opinion was sought and obtained from the team of doctors of Kaveri Hospital, giving treatment to Sh. V Senthil Balaji. In their opinion medical dated 17 June 2023, 07.45 am., the doctors have opined as follows, "...He is presently hemodynamically stable and is under continuous cardiac monitoring in the ICU, He is advised bed res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone "Beating Heart Coronary Artery By-pass surgery on 21.6.2023. I submit that from 14.6.2023 till date no effective time was available for the Investigating agency to exercise its right for custody as per Sec 167 of the Code and hence it should be deemed that the accused is not under any effective custody so that the first 15 days custody period does not come in the way of the right of the investigating agency for effective investigation and interrogation of the accused. Hence this Hon'ble High Court may be pleased to exclude the period of treatment to be undergone in the hospital from the period of custody as interrogation and investigation would be rendered meaningless during hospitalization. Reliance in this regard is placed on the recent decision of Hon'ble Supreme Court in the case of CBI v. Vikas Mishra, 2023 SCC Online SC 377, wherein in a similar fact situation, this Hon'ble Court was pleased to hold that period spent in a private hospital would be excluded from the period of custody "21. No accused can be permitted to play with the investigation and/or the court's process. No accused can be permitted to frustrate the judicial process by his conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of Supreme Court after hearing the both the sides at length, has posted the matter on 04.07.2023 for further hearing vide its order dated 21.06.2023. Copy of the order dated 21.6.2023 is filed in the typed set of papers. 3) Additional grounds of Petition filed by the petitioner:- 3.1) After craving leave for filing the additional submissions the petitioner submits that when the above-captioned Habeas Corpus Petition was taken up for hearing on 15.06.2023, this Hon'ble High Court of Madras (hereinafter, "this Hon'ble Court") was pleased to pass an order on 15.06.2023 containing certain directions wherein this Petitioner was permitted to file a copy of the remand order and to raise any additional grounds. I, therefore, crave leave of this Hon'ble Court to treat this Affidavit of additional grounds as part and parcel of the affidavit filed along with the above-captioned Habeas Corpus Petition. 3.2) The petitioner submits that that the detenu was one of the Members of the 15th Legislative Assembly of Tamil Nadu, returned as a candidate of the AIADMK party from Aravakurichi Assembly Constituency in the year 2016. I further submit that he was one of the 18 ML ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution of India, I moved this Hon'ble Court at 10.30 AM with available facts on 14.06.2023 and filed the above-captioned Habeas Corpus Petition. When the Habeas Corpus Petition was taken up a Hon'ble Division Bench of this Hon'ble Court at 02.15 PM on 14.06.2023, one of the Hon'ble judges recused from the case and hence the matter was transferred to another Hon'ble Bench. Due to administrative reasons and procedures to place the matter before another Hon'ble Bench, the matter came to be heard only on 15.06.2023. The Order of Judicial Custody Passed On 14.06.2023 Is Illegal 3.6) The petitioner submits that in the meanwhile on 14.06.2023, the Learned Principal Sessions Judge/Special Judge PMLA cases at the request of the Respondent visited Omandurar Government General Hospital, Chennai and remanded the detenu to Judicial Custody till 28.06.2023. At the time of remand, the detenu explained the ill treatment meted out by him at the hands of the Respondent and also that he was physically manhandled by the Respondent. He also represented that he was not informed about the grounds of arrest. A petition (this Petition was later numbered as Crl.M.P.No. 13521 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 19(1) of PMLA 2002 would go to show that none of them are inconsistent with each other. Hence, the right to be informed of the grounds of arrest is both a fundamental and a statutory right. I further submit that violation of Article 22(1) of the Constitution of India amounts of violation of fundamental right and hence, a Habeas Corpus Petition under Article 226 of the Constitution of India is maintainable and permissible. I further submit that violation of statutory provisions like Section 50(1) of Cr.P.C and Section 19(1) of PMLA 2002 are violation of fundamental right guaranteed under Article 21 of Constitution of India. Since those two provisions are the procedure established by law, depriving the detenu of his personal liberty in violation of them is amenable to exercise of jurisdiction under Habeas Corpus. 3.11) The petitioner submits that the Hon'ble Supreme Court has held the right under Article 22 (1) is an absolute right and the same cannot be deviated by any authority. This was followed by this Hon'ble Court in 1988 LW Cr. 503 Selvanathan alias Raghavan vs State and in Guruswamy vs State reported in 2004 1 LW Cr. 418. The claim of the Respondent is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act." "71. Act to have overriding effect. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 3.15) The petitioner submits that, in this context, it is imperative to read section 41A of Code of Criminal Procedure Code, which states follows. "41A. Notice of appearance before police officer. (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under subsections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). 5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not-(a)impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submit that the presence of C.R.P.F itself vitiates the entire detention procedure as there was no request from the civil force to provide any further policing personnel from the Union Government. There is no law providing for the Respondent to take assistance of C.R.P.F nor is it within the duties enumerated for the C.R.P.F (which is essentially under the Union Ministry of Home Affairs) to provide assistance for the Respondent authority. Even PMLA 2002 is silent about any situation where the Respondent is empowered to take the assistance of C.R.P.F or any other Central policing force. As such, the present C.R.P.F was unlawful and against the established principles of law. 3.21) The petitioner submits that alternatively, the presence of C.R.P.F signals the start of detention period; and the detenu was not produced before the jurisdictional Special Court within 24 hours of this event, as per Section 19 of PMLA 2002, which was not done. In Naga People's Movement of Human Rights vs Union of India (1998) 2 SCC 109, the Constitution Bench of the Hon'ble Supreme Court of India has held that even armed forces can only be deployed in aid of civil power and provisions of Cr.PC g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the detenu has cooperated with the investigation. It is admitted that the detenu was In the custody of the Respondent from 9.30 AM on 13.06.2023 till 1.58 AM on 14.06.2023. From the Panchanama prepared in the presence of witnesses, the search proceedings commenced on 8:20 AM on 13.06.2023 and continued till 11:00 PM on 13.06.2023. In that Panchanama, it is noted by the Respondent as follows: "… Before the actual start of search and after the conclusion of search, Shri Ritesh Kumar, Assistant Director, Directorate of Enforcement and said accompanying officers/ staff offered their personal search which was politely declined by Shri.V. Senthil Balaji on both the occasions in our presence." … "… During the course of search, Shri V. Senthil Balaji gave sworn statement under section 17(1)(f) of PMLA 2002 in our presence and no threat, coercion or inducement was used by the officers for getting the said statement of above said person." 3.25) The petitioner submits that Section 17(1)(f) of PMLA 2002 reads as follows: "1. Where the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PMLA 2002 is similar to Section 61 summons under Cr.P.C. Therefore, there is no inconsistency with the issuance of Section 41A Cr.P.C notice. Hence the detention/remand cannot be sustained and liable to be set-aside the remand order at the threshold and set the détenu at liberty forthwith. 3.29) The petitioner submits that Section 19 of PMLA Act 2002 expressly provides for custody of maximum period of 24 hours of a person arrested by an officer authorized to make such arrest. Within the said period the person so arrested is mandated to be produced before the nearest Magistrate. It may be noted that there is a conspicuous absence of any provision under PMLA 2002 regarding custody of a person arrested beyond 24 hours. By virtue of Section 65 of the Act, provisions of Section 167 Cr.P.C. would be applicable to such arrest made by the authorized officer under PMLA. Since such authorized officer is not a police officer as held in Vijay Madanlal Choudhary, the period of custody of such arrested person with the ED officials cannot be beyond the first 24 hours of arrest. 4) Sur Rejoinder filed by the 1st Respondent:- 4.1) The 1st Respondent submits that it has been categorical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to serve the summons on the arrestee which he refused to receive and refused acknowledge. It also to be noted that out of the 6-summons served on him on earlier occasions, the arrestee appeared only once but did not produce the required documents and did not cooperate with the investigation. Thereafter he sent his auditors when the summons was issued for personal appearance to record his statements. He has filed a writ petition challenging the 6th summons. Thus, on all the earlier summons as well as for the summons issued after arrest, the arrestee did not cooperate. Mere presence will not amount to appearance or cooperation. 4.7) The 1st Respondent submits that in additional grounds, the petitioner has stated that accused was detained from 7.30 am on 13.6.2023. After filing of our additional counter, petitioner has changed her stand and now stated, in Para-5 that the detenu reached the residence at 9.30 am on 13.6.2023. This shows that the petitioner is trying to improve upon his case and manufacturing wrong facts as per his convenience. 4.8) The 1st Respondent submits that he denies the averment in para-6 of rejoinder affidavit that no prudent man will believe the claim of ED ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2023 at this belated stage, is false and deserves to be rejected. No such averment was made before the Ld Special Judge in the Bail Application which was made immediately after the first order remanding petitioner to Judicial Custody. 4.10) The 1st Respondent submits that he denies the averments in para-7 of rejoinder affidavit that the above referred documents were prepared much later. As far as the mentioning of the telephone number of Ashok Kumar as 944225356 (Nine digits), 1 submit his telephone number is 9442253536. He was called on the said number 9442253536 but he did not pick up the call and hence I sent the text message to the phone number 9442253536 of Mr. Ashok Kumar. The mentioning of 9 digits in the arrest memo is an accidental clerical mistake which would not vitiate any proceeding and the petitioner is attempting to make a mountain out of a mole hill in this regard. As a precaution, print out of screen-shot of mobile call along with print out of email sent were enclosed along with the arrest memo. The learned Special Court Judge, after having perused the same has recorded that 'proof filed' for communication of arrest to relatives. That is the reason, at about 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15.06.2023, the present Habeas Corpus Petition came up before this court and at the admission stage, the learned senior counsel for the petitioner was heard. On behalf of the respondents, the learned Additional Solicitor General of India took notice and made submissions to the limited extent he had instructions. Upon considering the same, this court passed the order dated 15.06.2023 by framing two questions as to whether or not the complaints made on behalf of the petitioner were factually correct and even if so, whether still the same would amount to absolute illegality in passing the remand order so as to entertain and grand relief in the Habeas Corpus Petition. Yet another question as to whether or not the period spend by the detenu in the hospital should be excluded from the first 15 days of judicial custody for the purposes of granting custody of the detenu to the respondents, was also framed as per the submissions made by the learned Additional Solicitor General of India. 5.2) The matter was posted to 22.06.2023 for filing of counter and disposal of the Habeas Corpus Petition. By the same order, by considering the medical records and the medical bulletin issued by the Omandu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions summarizing the arguments in quick time. 6.2) It is the case of the petitioner that the detenu is innocent, there is no direct allegations against him in the predicate offences and the agencies are hounding him at the behest of his political adversaries whose interests are directly in conflict with that of the detenu. In the process, he is harassed, his right to life and liberty is trampled and the constitutional safeguards for curtailing the liberties by established procedures of law is given a go by. It is pointed out that the case pertains to offences said to have been committed during the year 2014. 6.3) The respondents on the other hand contend that the respondents hadsufficient grounds for detaining the detenu, the officers are only doing their duties and the detenu being an influential minister in the ruling government has not cooperated in the investigation process and threatened the investigating officers and that the procedures of Sec 19 of PMLA, 2022 is scrupulously followed. 7) Arguments of the counsels:- 7.1) Learned senior counsels for the petitioner Shri. Mukul Rohatgi & Shri N.R Elango framed their arguments on the 3 contested points viz. (1) on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8.1) Learned senior counsel for the petitioner asserts that ED is not entitled for police custody as they are not police officers empowered under Sec 167 of CrPC in as much as the PMLA, 2002 does not entrust the ED Officers with the powers to act as Officer in Charge of Police Station as defined under Sec 2 (o) of CrPC. They contend that the procedure for SHO is established through Rule 637 of Tamil Nadu Police Standing Order. They take support from the decision of the Hon'ble Supreme Court of India in the Case of Vijay Madanlal Choudhary & Ors vs UOI & Ors 2022 SCC Online SC 929 holding that the Enforcement Directorate officials under PMLA are not Police officers. Per contra, learned Solicitor General of India contends that the issue is settled and relies on the decision of the Hon'ble Supreme Court in the case of Directorate of Enforcement vs Deepak Mahajan 1994 (3) SCC 440, Vijay Madanlal Choudhary & Ors vs UOI & Ors 2022 SCC Online SC 929, Anupam Gulkarni Case, P Chidambaram vs Directorate of Enforcement (2019) 9 SCC 24 the Assistant Director ED vs Hassan Ali Khan (2011) 12 Supreme Court Cases 684. Perusal of the case laws cited by the respondents indicated that the first fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the safety and well being of the detenu in police custody. And police custody shall be awarded only to such officers who are entrusted with the powers of a Station House Officer under the CrPC. It is for this reason, the Officers of Customs, Central Excise, GST & FERA are empowered to act as Officer in Charge of Police Station under the respective special acts. 8.4) ) It is the scheme of the constitution and the statutes that no person shall be detained beyond 24 hrs for any offence under any law passed by the parliament except under a judicial order passed by a competent court. This applies to all investigating agencies including Police officers. Meaning, an accused or suspect will be available for custodial interrogation immediately after arrest for 24 hours for all agencies after which they have to necessarily produce the detenu to a competent court for further orders. A 60 day judicial remand for offences carrying punishment of less than 7 years and a 90 day judicial remand for those offences carrying punishment above 7 years is contemplated under the statutes. Thereafter, if the detenu can furnish bail, he would be released from judicial custody. In rare cases where custodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to remand is entitled to see a Pleader and his relations. (b) Whenever any punitive action is taken or contemplated against any foreign national, he should be provided with facilities, if he so desires, to communicate over the telephone or by telegram or letter, with his Counsel or High Commissioner or Consular-General or his representative, as the case may be. (G.O. Ms. 4148, Home, 18 Oct. 1949) (2) (a) He should not at any time be allowed to talk to members of the public. (b) (i) No person in Police custody shall be allowed to be garlanded or make speeches. He shall not also be allowed to receive food direct from other people. (G.O. Ms. 1512, Home 13 May 1964) (ii) If a prisoner at the time of arrest is already garlanded, a complete search shall be made immediately after arrest and the garlands as well as the other articles except wearing apparel shall be removed and taken possession of after preparing a Seizure Mahazar. (3) (a) Dhurries and blankets are supplied for the use of prisoners in Police lock-ups according to the scale noted below:-- (i) All Police Lockups .. Two dhurries each. (ii) Police Lock-ups in Stations where the Police Staff are supplied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 1994 (3) SCC 440 is misplaced. It is a case related to the Foreign Exchange Regulation Act, 1973 where under the officers of enforcement directorate are empowered to act as a Officer in charge of a Police Station. Also, in the said case, the court dealt with the issue of judicial custody and not police custody. 8.8) It is nobody's case to argue that it is a careless omission. The decision to not empower ED Officers appears a conscious bridle considering the sweeping powers granted to the authorities under the Act. Though the offences of Money Laundering is distinct from any or all of the scheduled offences under PMLA, 2002, there is a bar on the ED officials to suo-moto file ECIR for the offence of money laundering. An FIR or Complaint by a competent authority in a predicate offence is a sine qua non for ED officials to initiate a proceeding under the PMLA. 8.9) Chapter IV of PMLA, 2002 obligates the Banking Companies, Financial Institutions and intermediaries that are normally touted as the routes to integrate laundered money back into the system to provide information to the Enforcement Directorate officials in the format so desired and keep records. It is a sweeping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was argued that non communication of grounds of arrest amounts to infraction of Article 22 of the Constitution of India. They alleged a 8 hour delay in communicating the same via email. He has pointed out to the posterior date stamp in the grounds of arrest to argue that the remand order was passed without seeing the grounds of arrest. They contested the bonafides and the existence of the grounds of arrest at the time of arrest. They assail that the fact that the detenu is aware of the facts of the case is not an excuse to justify the non compliance of the provisions of Sec 9 of PMLA, 2002. It was also assailed that supply of remand application is no compliance under Sec 19 of PMLA 2002. In support of this claim they relied on the decision of a full bench of this court in Selvanathan @ Raghavan reported in (1989) 1 MWN (Crl) 117. It was urged that failure to issue notice under Sec 41 A CrPC makes the arrest illegal. It is an important procedural safe guard prescribed in terms of Article 21 of the Constitution of India. Reliance was placed in the case of Arnesh Kumar vs State of Bihar (2014) 8 SCC 273 where inter-alia directions were issued to the effect that no arrests can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Distt. Magistrate, Darjeeling, (1974) 4 SCC 141: 1974 SCC Cri 280 and Col. B. Ramachandra Rao (Dr) v. State of Orissa, (1972) 3 SCC 256. He urged that habeas corpus petition can be held maintainable only to the extent if there is positive material for the petitioner to come out with clear and unimpeachable fact that alleged detenu is in illegal detention. Reliance was placed on Bhagwan Singh v. State of Rajasthan, 2005 SCC Online Raj 861 : (2006) 1 RLW 790. He urged that Habeas Corpus Petition is maintainable only when the detention is without authority of law. Reliance is placed in State v. H.Nilofer Nisha, (2020) 14 SCC 161. He would urge that as the detenu had moved bail that was rejected and therefore Writ of Habeas corpus will not lie. He contended that The order of remand can be challenged only in appropriate proceedings either under the revisional jurisdiction or appellate jurisdiction. 9.3) He contested that the case of Gautam Navlakha relied by the petitioner does not lay down the law and is distinguishable from the case on hand. He averred that the judgment in Madhu Limaye &Ors. (1969) 1 SCC 292, being relied upon by the petitioner, is completely distinguishable for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f CRPF at the search premises and there was no malice and argued that presumption of detention for the mere presence of CRPF is incorrect. 9.5) The petitioners would contend that the arrest is illegal, the remand is without application of mind and therefore custody is illegal and writ is warranted. On the other hand, the respondents would urge that they had followed the due procedures of law, the remand was after apprising the grounds of arrest, proper application of mind and after satisfying the laws. It was urged that Habeas Corpus Petition is not maintainable once the remand order is legal even if there is infirmities in the procedures preceding the remand and submitted many case laws. 9.6) On the face of the case laws submitted by the parties, it would appear that once a legal remand order which is judicial in nature is passed then there is no way Habeas Corpus Petition will lie and the only remedy available to the detenu is to contest and set aside the remand order. But as you delve deeper, it would indicate that the case laws relied extensively by both the petitioner and the respondents governed two kinds of detention. Preventive detention before commission of crime and det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction and without authority of law and therefore is illegal. The order fails the test of legality both of law and omission to follow judicial discipline and we have no hesitation to hold that the detention at the time of hearing the Habeas Corpus Petition is illegal. 9.10) Accordingly, we hold that Habeas Corpus Petition is maintainable in the facts and circumstances of this case. 9.11) In view of the above discussions and conclusions arrived in the case, the necessity to examine the important question whether Sec 41 A CrPC is applicable to arrest proceedings under PMLA, 2002 and whether non compliance of the said provision in cases attracting punishment of less than 7 years would vitiate the arrest proceedings under PMLA and subsequent remand, is of no consequence to the outcome of the present case and has become redundant for the purposes of disposing this Habeas Corpus Petition. Therefore the contestations on that count advanced by the parties are left open. 10) On Exclusion of Time:- 10.1) It is now a settled law as laid down in various decisions of the Hon'ble Supreme Court pointed out by the petitioners that the period of police custody cannot be extended beyond 15 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court and to set him at liberty. B. The case of the petitioner : 2. It is the case of the petitioner that there are three criminal cases pending against the detenu in C.C.Nos.19, 24 and 25 of 2021, for alleged offenses under Sections 406, 409, 420 and 506(I) read with Section 34 of the Indian Penal Code (hereinafter referred to as 'I.P.C') are pending on the file of the learned Additional Special Court for Trial of Cases against MPs / MLAs at Chennai (hereinafter referred to as Predicate offences). The occurrences are of the year 2014. It is alleged that the detenu had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. On the basis of the predicate offences, a case is registered for an offence under Section 4 of the Prevention of MoneyLaundering Act, 2002 (hereinafter referred to as 'P.M.L.A'). 3. Pursuant thereto, on 13.06.2023, the respondent officials suddenly came to their house at Greenways Road, Chennai, in the morning at about 7.30 A.M and interrogated the detenu continuously for about 16 hours and searched his office and residence. He was denied permission to meet his relatives and advocate and was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Again, between 0.00 hours to 0.13 hours, on 14.06.2023, the Investigating Officer personally attempted to serve the summons and record the statement of detenu. However, at about 0.30 hours, the detenu started behaving in an intimidating manner and threatened the Investigating Officer. Under the circumstances, the Investigating Officer started recording the statement under Section 50 of the P.M.L.A in the presence of two independent witnesses. At about 1.30 A.M, on account of the noncooperation of the detenu, they concluded the summons proceedings and the detenu was arrested under Section 19 of the P.M.L.A, since the respondents had reasons to believe that he had committed an offence under Section 3 punishable by 4 of the P.M.L.A. At about 1.39 A.M, the grounds of arrest, which was reduced into writing, was attempted to be served on the detenu, but, he refused to accept the same. Therefore, the arrest memo was executed in the presence of two independent witnesses. At about 1.41 A.M, intimation of arrested was tried to be conveyed to one Ashok Kumar, brother of the detenu and one Nirmala, sister-in-law of the detenu through phone calls. However, since they did not pick up the phone c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting custody of the detenu to the respondents, was also framed as per the submissions made by the learned Additional Solicitor General of India. The matter was posted to 22.06.2023 for filing of counter and disposal of the Habeas Corpus Petition. By the same order, by considering the medical records and the medical bulletin issued by the Omandurar Hospital, upon the request made on behalf of the petitioner, this Court found that the detenu needed emergency bypass surgery and treatment for blockages in arteries. Since on behalf of the detenu it was pleaded that their regular Physician is at Cauvery Hospital, Chennai, this Court directed shifting of the detenu from the Government Hospital to Cauvery Hospital, Chennai so as to undergo the treatment at the Hospital of the choice of the detenu at their own costs. 8. Thereafter, further developments are that the detenu was shifted to Cauvery Hospital and it is represented that he had undergone the said surgery and treatment and is presently continuing his treatment in the said Hospital. On 16.06.2023, the respondents pressed for custody of the detenu and an order has also been passed by the learned Principal Sessions Judge, Chennai g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reject the remand, the learned Judge, without even considering the objections, remanded the detenu and thereafter simply disposed off the petition by recording that already she had remanded the detenu and therefore, the order of remand is absolutely mechanical and without application of mind. (iv) such subsequent Order will not wipe out the constitutional violation of Article 22 of the Constitution of India and would only render the Remand illegal and still this Court would issue rule of Habeas Corpus enlarging the detenu within the custody. (v) Even after passing of the interim order, the Enforcement Directorate, inspite of objections on behalf of the petitioner that this Court is in seizin of the matter, pressed for Police custody, by virtually overruling the order of this Court, the learned Principal Sessions Judge has also grant an order on 16.06.2022 entrusting the detenu to Police custody, thus virtually sitting on appeal over the order of this Court. (vi) The Enforcement Directorate is not vested with the powers of the Station House Officer and therefore, they cannot be termed as Police officers and what is contemplated under Section 167 of Cr.P.C., is only Police c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment for the same proposition. The learned Senior Counsel relied upon the judgment of the Hon'ble Supreme Court of India in Gautam Navlakha Vs. National Investigation Agency [2021 SCC OnLine SC 382], more specifically relying upon the paragraph Nos.66 to 71 of the said judgment to contend about the maintainability of the Habeas Corpus Petition and submit that maintainability and entertainability are two distinct questions and the Habeas Corpus Petition will always be maintainable. The learned Senior Counsel further relied upon the judgment of the Hon'ble Supreme Court of India in Satender Kumar Antil Vs. Central Bureau of Investigation and Anr. [(2022) 10 SCC 51] to contend that Section 41-A of Cr.P.C., compliance is mandatory even for the Enforcement Directorate and non-compliance thereof vitiates the entire arrest and the subsequent remand. 13. The learned Senior Counsel by taking this Court through judgment of the Hon'ble Supreme Court of India in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. [2022 SCC OnLine SC 929] and more specifically paragraph Nos.9, 33, 142, 325, 326 and 449 of the said judgment, would contend that the Hon'ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stigation Cell-I, New Delhi Vs. Anupam J. Kulkarni [(1992) 3 SCC 141] for the proposition that 15 days rule from the first date of judicial remand is inviolable even in circumstances similar to the present one and therefore, there is no question of any extension of the time for Police custody. 15. Mr.Tushar Mehta, learned Solicitor General of India for the respondents would make the following submissions : (a) Habeas Corpus Petition is a remedy against the respondents in the petition who are invariably the Executive or such other private entities who have or who authorise the custody of the detenu, directing them to produce the detenu before the Court and set the detenu at liberty if such custody is illegal. In this case, there is no question of direction to the Enforcement Directorate since the detenu is no more in their custody and is in the judicial custody of the Court. Therefore, Habeas Corpus Petition is not maintainable at all once the Judicial Order of Remand is passed. (b) The passing of the order of judicial remand need not precede the filing of the Habeas Corpus Petition and even as of the date of return of notice i.e., subsequently also, once the Order authorising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeds of crime and thus, hampering the investigation and there is likelihood of the money trail being lost which is very important in the case of money laundering. Therefore once the necessity is satisfied, the arrest is in order. (g) Ample proof of intimation of the grounds of arrest, at the time of arrest, is demonstrated by the memo of arrest, which was drawn up in the presence of independent witnesses and in any event, it can be seen that at the time of remand itself, the learned Principal Sessions Judge herself records that she had once again informed the grounds of arrest to the detenu. (h) The language of Section 19 as well as the Article 22 of the Constitution of India is very clear that it is not exactly at the very moment of arrest, the compliance should be made, but, it should be as soon as possible. In this case, it is made at the very moment of arrest and also as soon as possible in every possible way. (i) On a perusal of the order of remand, it would be clear that it is not mechanical and that there is due application of mind. Therefore, even assuming that Writ of Habeas Corpus is maintainable, none of the grounds projected are factually tenable and the remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay (II) [(1994) 5 SCC 410] to contend that the Habeas Corpus Petition is not maintainable. Adverting to the facts of Gautam Navlakha's case (cited supra), he would submit that the question as to the maintainability of the Habeas Corpus Petition after passing of the Remand Order did not directly and materially arise and therefore, the observations made in paragraph No.71 of the said judgment can only be considered as obiter. 17. In support of his proposition that the period of hospitalisation to be excluded for grant of custody, the learned Solicitor General of India placed reliance on CBI Vs. Vikas Mishra1 [2023 SCC OnLine SC 377]. In support of his contention that the provisions relating to arrest contained in Sections 41 and 41-A of Cr.P.C., are not applicable and the procedure under Section 19 only is to be followed, the learned Solicitor General of India placed reliance on Vijay Madanlal Choudhary (cited supra) more specifically relying upon the paragraph Nos.3, 9, 23, 142, 323, 324 and 456 of the said judgment. 18. The learned Solicitor General of India placed reliance on P.Chidambaram Vs. Directorate of Enforcement [(2019) 9 SCC 24], more specifically on orders of Enfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount, the law which will hold the field as on date is that no exclusion of time can be granted. Adverting to the judgment of the Hon'ble Supreme Court of India relied by the learned Solicitor General of India in CBI Vs. Vikas Mishra's case (cited supra), the learned Senior Counsel would specifically plead to record his arguments that having noted about the earlier rulings of the Hon'ble Supreme Court of India and having doubted the proposition, the same could have only been referred to a larger bench and till the larger bench answers the issue only, the existing rule could have been followed by the Hon'ble Supreme Court of India. Alternatively, he would submit that when a larger bench consisting of three judges has taken a view in Budh Singh's case (cited supra), the High Court should only follow the larger bench and refuse the extension of time. (c) Reiterating maintainability of the Habeas Corpus Petition, the learned Senior Counsel would once again submit that the reading of Madhu Limaye's case (cited supra) and Gautam Navlakha's case (cited supra) by the learned Solicitor General of India is incorrect and they apply in all force to the instant ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner herself, e-mails which are sent to the relatives and the other documents etc., he would factually refute the allegations of non-compliance of Article 22. 22. On behalf of both the sides, apart from the above judgments which were elaborately dealt with, the other judgments which are on the points canvassed were also cited before us. Both the sides learned Senior Counsel not only made elaborate submissions, but, also circulated written submissions encapsulating their oral submissions. F. Questions for consideration : 23. I have considered the rival submissions made on either side and perused the material records of the case. The following questions arise for consideration:- (i) Whether or not a Writ of Habeas Corpus would be maintainable after passing of Judicial Order of Remand of the detenu and if so, on what premises? (ii) Whether the petitioner herein had made out a case for exercise ofpowers under Article 226 of the Constitution of India to set the detenu free? (iii) If the detenu is not be set free, then whether the period from the moment of his arrest on 14.06.2023, whereby, he is admitted in the Hospital till his discharge is to be excluded while computin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention, when there is a subsequent order making the detention as legal, in the application for Habeas Corpus, the Court is not concerned with the same. It is essential to extract the paragraph No.4 of the said judgment : "4. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India: [AIR 1966 SC 816 : (1966) 2 SCR 427 : 1966 Cri LJ 602] "It is well settled 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 the application and the date of the hearing." In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab [(1952) 1 SCC 118 : AIR 1952 SC 106 : 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration is whether the detention of the petitioner in the Central Jail, Vizakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Darjeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Vizakhapatnam. See para 7 of the judgment of this Court in B.R. Rao v. State of Orissa. The legality of the detention of the petitioner in the Central Jail, Vizakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them." (emphasis supplied) 27. The Hon'ble Supreme Court of India in Serious Fraud Investigation Office's case (cited supra), while considering the ex post facto extension granted by the Central Government, by which only, the Agency had jurisdiction to proceed further, considered the issue in detail and held that the Habeas Corpus Petition will no longer be maintainable once there is an Order authorising judicial custody as the custody is the pursuant to the custodial judicial function exercised by a competent Court. The final co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to the institution of the proceedings." Eventually, the Bench ruled thus: (Kanu Sanyal case [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , SCC p. 148, para 5) "5.… The production of the petitioner before the Special Judge, Visakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam, pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid. This Court pointed out in Col. B. Ramachandra Rao v. State of Orissa [(1972) 3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971 SC 2197] (SCC p. 258, para 5) that a writ of habeas corpus cannot be granted '5....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'." 21. The principle laid down in Kanu Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , thus, is that any infirmity 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. 22. At this juncture, we may profitably refer to the Constitution Bench decision in Sanjay Dutt v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borne in mind that the effect of the order [Manubhai Ratilal Patel v. State of Gujarat, Criminal Misc. Application No. 10303 of 2012, order dated 17-7-2012 (Guj)] of the High Court regarding stay of investigation could only have a bearing on the action of the investigating agency. The order of remand which is a judicial act, as we perceive, does not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order [Manubhai Ratilal Patel v. State of Gujarat, Special Criminal Application No. 2207 of 2012, decided on 7-8-2012 (Guj)] of remand cannot be regarded as untenable in law. 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 witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us Petition is not maintainable; (iii) Such authorisation of valid custody can even be subsequent to the alleged act of illegal detention or even be subsequent to the filing of the Habeas Corpus Petition, but, if on the date of return of notice / taking up the Habeas Corpus for considertion, if the detention is or becomes legal, then, other questions would no longer be the concern of the Court in the Habeas Corpus Petition; (iv) The illegalities or the procedural violations etc., in respect of the said judicial Order of Remand can only be canvassed by way of appropriate appeal or revision proceedings under the Code of Criminal Procedure and not in the Habeas Corpus Petition; (v) However, absolute illegality, total non-application of mind or lack or jurisdiction and wholesale disregard to the fundamental rights in a given facts and circumstances of a case would be an exception where the Habeas Corpus Court can examine the illegality of arrest and detention (Paragraph No.21 of Madhu Limaye'; Pargraph 31 of Manubhai Ratilal Patel and paragraph No.71 of Gautam Navlakha). Thus, I answer the question holding that a petition for Habeas Corpus agitating to produce the detenu and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own to Tamil Nadu, Government Multi Super Speciality Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J. CECILY MARY MAJELLA, Associate Professor, Cardiology certified that the accused Senthil Balaji is concisous and oriented. Then I met Thiru. V. Senthil Balaji, the accused in the ICU ward of the said hospital and enquired in the presence of Dr. J. CECILY MARY MAJELLA. Heard the Special Public Prosecutor and the Senior Advocate Mr.N.R. Elango, who appeared for the accused. Grounds of Arrest was said to have been conveyed by the Investigating officer, but the accused denied to acknowledge and signed the same. Aslo relatives of the accused are said to have been not available in the place of arrest and they have been informed through SMS and Email since they didn't pick the phone call. Proof has also been produced. I informed the accused about the grounds of arrest and his right of legal assistance. The accused complained that he was man handled by the ED officials but no complaint of any bodily injury. The prosecution has established Prima facie case against the accused for the offences u/s. 3 of Prevention of Money Laundering Act, punishable u/s.4 of the said Act. Hence the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from making any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the police officer; or (e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing: Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this subsection, record the reasons in writing for not making the arrest.; (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch person, at any time,fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice." 36. It is essential to extract the relevant provisions of P.M.L.A i.e., Sections 19, 62, 65 and 71 which read as hereunder : " 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such a person by informing him on the grounds of the arrest. Additionally, such officer should also forward the copy of the order along with material in his possession to the adjudicating authority in a sealed envelope and that the person so arrested shall be produced before the concerned Special Court or learned Magistrate, as the case may be, having jurisdiction within a period of 24 hours. 38. It is in this context, when the constitutional validity of the provisions of P.M.L.A, more specifically Section 19, was challenged before the Hon'ble Supreme Court of India in Vijay Madanlal Choudhary's case (cited supra) specifically in the context that Section 19 prescribes arrest on the belief of involvement in the offence itself, while Sections 41 and 41-A of Cr.P.C., have greater protection inasmuch as in respect of the offence punishable up to 7 years, arrest should not be automatic in all cases merely on the involvement in the offence, but, either should be necessary on the ground mentioned in Section 41(1)(b) of Cr.P.C., and in all other cases, notice under Section 41-A Cr.P.C., only has to be issued. The contentions were considered by the Hon'ble Supreme Court of India in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan). 326. Considering the above, we have no hesitation in upholding the validity of Section 19 of the 2002 Act. We reject the grounds pressed into service to declare Section 19 of the 2002 Act as unconstitutional. On the other hand, we hold that such a provision has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act of prevention of money-laundering and confiscation of proceeds of crime involved in money-laundering, including to prosecute persons involved in the process or activity connected with the proceeds of crime so as to ensure that the proceeds of crime are not dealt with in any manner which may result in frustrating any proceedings relating to confiscation thereof." Therefore, it is clear that the issue is no longer res integra and the Hon'ble Supreme Court of India had considered that the special provision in the form of Section 19 adequately safeguards the interests of the accused and thus, the express application of Sections 41 and 41-A of Cr.P.C., stood negated in respect of the offence under P.M.L.A. 39. But, at the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons are raised in the petition to reject the remand, the said petition ought to have been considered while making the order of remand and it was incumbent on the part of the learned Presiding Officer to apply his or her mind in respect of those objections and if those objections are found to be genuine or valid, then the remand should be refused and if the objections are liable to be rejected, then the remand should be authorised. 42. In the instant case, after making the order aforesaid in the remand, the objections were rejected as follows : "14.06.2023 Since the accused has already been remanded to judicial custody, this Petition for rejection of remand doesn't arise. Hence this Petition is dismissed as infructuous." 43. To that extent, I agree on the point of law that the proper exercise of powers by the learned remanding Judge would be to first consider the objections and decide upon the objections which should be made immediately and then make the order of remand or otherwise simultaneously. In this case, the procedure otherwise is incorrect. But, the factual scenario on hand is that the learned Presiding Officer visited the Hospital after examining the conditions and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration for the purpose of disbelieving the respondents officials that the grounds of arrest were informed to the detenu. Therefore, I hold that the petitioner has not made out any ground on this score also. 45. Therefore, on the conspectus of the above analysis, it can be seen that the petitioner is unable to make out any ground. Every ground raised is untenable or to say the least is arguable both in terms of law and on facts and therefore, this is not a case of patent illegality or absolute nonapplication of mind or case of lack of jurisdiction so as to grant any relief to the petitioner. I. Question No.iii : 46. Coming to the prayer of exclusion of time, it is the first contention of the learned Senior Counsel for the petitioner that the respondents are not Police officer to seek custody. In this regard, I have already extracted Section 65 of P.M.L.A and if Section 65 is read along with Section 4(2) and 5 of Cr.P.C., it can be seen that in respect of the investigation of the offences under P.M.L.A, since no other contrary or separate procedure is contained in P.M.L.A, the provisions relating to investigation would be applicable to the offences relating to P.M.L.A. Already, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA." (emphasis supplied) 47. In this case, the learned Senior Counsel are not arguing that Section 167 Cr.P.C., will not be applicable and the accused cannot be produced before the appropriate Court for authorising the proper custody being the judicial custody or Police custody. The only contention which is made is that when once the language used in section speaks of Police custody and since it is the contention of the Enforcement Directorate that they are not Police officers, then they are not even entitled to seek Police custody. I am not able to accept these submissions because firstly, under Section 167(2) of Cr.P.C., the phrase used is "authorise detention of the accused in such custody as the Magistrate thinks fit". Therefore, the word "Police" is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said issue in CBI Vs. Vikas Mishra's case (cited supra), wherein, the said legal position was taken note of in the paragraph No.12 which is extracted hereunder : " 12. Relying upon the decisions of this Court in CBI v. Anupam J. Kulkarni [CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141 : 1992 SCC (Cri) 554] and the subsequent decision in Budh Singh v. State of Punjab [Budh Singh v. State of Punjab, (2000) 9 SCC 266] , it is vehemently submitted by Shri Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf of the accused that as such no police custody can be granted/allowed beyond the first 15 days from the date of arrest. It is submitted that therefore now the police custody which shall be beyond the period of 15 days from the date of arrest is not permissible." 52. Thereafter, in the paragraph No.21 ultimately, it is held as follows : " 21....Thus, the respondent-accused has successfully avoided the full operation of the order of police custody granted by the learned Special Judge. No accused can be permitted to play with the investigation and/or the court's process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be denied in its entirety to the respondents Enforcement Directorate. 56. A careful observation of the provisions of the Code of Criminal Procedure and various rulings of the Hon'ble Apex Court, one can understand that our criminal justice system operates on the principles of Truth (sathya), Justice (neethi), Compassion (karuna) and Peace (shanthi). Upto the stage of investigation and trial, it is the unearthing of the truth and truth alone is the primary objective. At the conclusion of the trial and rendering judgment, the primary objective is to render justice. If the person is found guilty and is sentenced to prison, Compassion is showered on him. As a matter of fact, the rights guaranteed by our Constitution to the prisoners can be better explained by the concepts of 'Supreme Compassion' as advocated by Vallalar (Thaniperumkarunai) and highest order of forgiving by doing good to the offender as enunciated in Thirukkural (Nannayam Seithu vidal). And compassion leads to Shanthi in the society. Now, keeping that in the mind, provision relating to investigation has to be approached and interpreted with the primary aim of unearthing the truth. Therefore, in that view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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