9911796707
TMI Blog2023 (11) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... the legality of the detention can be challenged is the date of filing of the writ and not any other date; that on the date of filing of habeas corpus, the detention of the petitioner was in district jail and therefore, the legality of his earlier detention cannot be considered; and that a writ of habeas corpus cannot be granted when the person is jailed and is in judicial custody. In the present case, it cannot be said that the remand orders are absolutely mechanical or suffer from the vice of lack of jurisdiction, warranting our interference in this writ petition, which seeks a writ of habeas corpus. The petitioner was arrested on 1st September 2023 and was served with the grounds of arrest on 1st September 2023. The petitioner has acknowledged receipt of the same. The law that held the field till Pankaj Bansal [ 2023 (10) TMI 175 - SUPREME COURT] , with respect to serving the grounds of arrest was Chaggan Bhujbal [ 2016 (12) TMI 1014 - BOMBAY HIGH COURT] - the Apex Court vide judgment dated 3rd October 2023 in Pankaj Bansal, has used the words `henceforth and has held that the decision of the Bombay High Court in Chaggan Bhujbal and Delhi High Court in Moin Qureshi [ 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke thereunder; (c) This Hon'ble Court be pleased issue a writ of certiorari and/or a writ, order or direction in the nature of certiorari and/or any other writ, order or direction and/or any other order to quash and/or set aside Remand Orders dated 2nd September, 2023 and 11th September, 2023 passed by the Hon'ble Designated Court under the PMLA Act, Sessions Court, Mumbai along with its effect, implementation, and all consequent actions take thereunder; (d) Pending the disposal of the present writ petition, this Hon'ble Court be pleased to temporarily release the Petitioner from the abjectly unlawful and arbitrary custody and incarceration in connection with E.C.I.R/MB ZO-II/29/2023/378 registered on 10th May, 2023 on such terms and conditions as this Hon'ble Court may deem fit and proper; (e) Pending the disposal of the present writ petition, this Hon'ble Court be pleased to stay the effect, implementation, and operation of Arrest Memo dated 1st September, 2023 issued by the Respondent No. 2, along, and all consequent actions take thereunder, Arrest Order dated 1st September, 2023 issued by the Respondent No. 2, and all consequent actions tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Desai, the petitioner was also detained beyond 24 hours, contrary to the statutory mandate. He submitted that there was a complete violation of Articles 21 and 22(1) of the Constitution of India and that no remand orders could rectify the illegality committed by the prosecution. He submitted that it was the duty of the remanding Court to satisfy itself, as to whether the constitutional and statutory safeguards were complied with and that the Competent Court had failed in its duty to do so. He submitted that the aforesaid petition seeking a writ of habeas corpus can be entertained, having regard to the same. Mr. Desai also relied on the latest judgment of the Apex Court in the case of Pankaj Bansal v. Union of India Cri. Appeal Nos. 3051-3052/2023 Dated 3/10/2023 to buttress his submission that the grounds of arrest i.e. physical copy was not furnished to the petitioner. Mr Desai also relied on the V. Senthil Balajii v. State 2023 SCC OnLine SC 934 to show that in the light of violation of the mandatory safeguards under Section 19 of the Prevention of Money Laundering Act, 2002 ( PMLA ), a writ of habeas corpus was maintainable. He brought to the Court s notice, the order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person is found to be in the custody of the Court, by a judicial order i.e. on the date of return of rule (12th October 2023 i.e. when the affidavit-in-reply of the Enforcement Directorate was placed before the Court), then, the said person cannot be said to be in illegal custody or illegal detention. 6. Mr. Venegavkar further submitted that admittedly, the three issues raised by the petitioner in the present petition i.e. the legality of his arrest, non-supply of grounds of arrest and having been kept in detention beyond 24 hours, were never raised by the petitioner before the remand courts i.e. during the first and second remand. Mr. Venegavkar submitted that admittedly, the competence and jurisdiction of Enforcement Directorate or that of the Special Judge, PMLA, has not been challenged and as such, if jurisdiction and competence is not challenged, then, the scope for challenge falls outside the scope of the writ of habeas corpus and that it would be open to the petitioner to avail of other remedies, as permissible in law. 7. With respect to maintainability of the writ of habeas corpus, Mr. Venegavkar relied on the following judgments: (i) Ram Narayan Singh v. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been held by this Court that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one. But the position, as we have stated, is that on that date there was no order remanding the four persons to custody. This Court has often reiterated before that those who feel called upon to deprive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law. That has not been done in this case. The petitioners now before us are therefore entitled to be released, and they are set at liberty forthwith. (emphasis supplied) 12. In Madhu Limaye, In RE 1969 (1) SCC 292, the issue raised in the said petition pertained to non-compliance of the provisions of Article 22(1) of the Constitution. The Apex Court observed that the law as laid down in Ram Narayan Singh (supra), was that the Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged 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, (1966) 2 SCR 427: 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 hearing . In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab, 1952 SCR 395 and Ram Narain Singh v. State of Delhi, 1953 SCR 652 a slightly different view was expressed and that view was reiterated by this Court in B. R. Rao v. State of Orissa, (1972) 3 SCC 256 , where it was said : In 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 . And yet in another decision of this Court in Talib Husain v. State of Jammu Kashmir, (1971) 3 SCC 118 , Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para 48 observed as under : 48. . It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. (See Naranjan Singh Nathawan v. State of Punjab, [1952] SCR 395; Ram Narayan Singh v. The State of Delhi, [1953] SCR 652 and A.K. Gopalan v. Government of India, [1966] 2 SCR 427). (emphasis supplied) 15. In Manubhai R.P. (supra), the Apex Court in para 31 has observed as under : 31. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of the order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have 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 inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. In the meantime, charge-sheet was filed against the petitioner on 27th August 2013 followed by a subsequent charge-sheet filed against the remaining accused persons on 3rd December 2013. On 19th December 2013, the Magistrate took cognizance of the offences punishable under Sections 147, 148, 149, 323, 447, 504, 379 and 386 of the Penal Code read with Section 27 of the Arms Act against the petitioner therein and others. In the facts as aforestated, the Apex Court in paras 21, 22 and 23 observed as under : 21. Two things are evident from the record : Firstly , the accused is involved in a criminal case for which he has been arrested and produced before the Magistrate and remanded to judicial custody; Secondly , the petitioner does not appear to have made any application for grant of bail, even when the remaining accused persons alleged to be absconding and remain to be served. The net result is that the petitioner continues to languish in jail. 22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us lies against an order of remand under Section 167 Cr.P.C. Accordingly, the Apex Court in para 71 of its judgment, held as under : 71. Thus, we would hold as follows : If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie. 18. In the present case, it cannot be said that the remand orders are absolutely mechanical or suffer from the vice of lack of jurisdiction, warranting our interference in this writ petition, which seeks a writ of habeas corpus. 19. Reliance was placed on the Apex Court judgment in V. Senthil Balaji (supra) by both, Mr. Amit Desai and Mr. Venegavkar. In the context of the facts in hand, the relevant paras of the said judgment, with which we are concerned, are being reproduced herein-under i.e. paras 29, 30, 31, 88, 89 and 95. 29. A writ of Habeas Corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Writ Petition being HCP No. 1021 of 2023. Added to that, an order of remand was passed on 14.06.2023 itself. The two remand orders passed by the Court, as recorded in the preceding paragraphs, depict a clear application of mind. Despite additional grounds having been raised, they being an afterthought, we have no hesitation in holding that the only remedy open to the appellant is to approach the appropriate Court under the Statute. This was obviously not done. We may also note that the appellant was very conscious about his rights and that is the reason why, by way of an application he even opposed the remand. 89. Despite our conclusion that the writ petition is not maintainable, we would like to go further in view of the extensive arguments made by the learned Senior Advocates appearing for the appellant. As rightly contended by the learned Solicitor General the scheme and object of the PMLA, 2002 being a sui generis legislation is distinct. Though we do not wish to elaborate any further, we find adequate compliance of Section 19 of the PMLA, 2002 which contemplates a rigorous procedure before making an arrest. The learned Principal Sessions Judge did take note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, at the first available opportunity with respect to illegality of arrest, non-handing over of the copy of the grounds of arrest or non-production within 24 hours before the competent Court. The case in hand, does not fall under any exception, and consequently, the relief as sought for cannot be granted. Although, Mr. Desai placed heavy reliance on Madhu Limaye (supra), to buttress his submission that it is well possible to entertain a writ of habeas corpus, if the remand orders are patently routine and appear to have been made mechanically and that if the detention in custody cannot continue after arrest, because of the violation of Article 22(1) of the Constitution, the person is entitled to be released forthwith, inasmuch as, the orders of remand are not such, as could cure the constitutional infirmities, we are afraid the same would not apply to the present case. The ratio laid down in Madhu Limaye s case (supra), cannot be disputed, however, the same would not apply to the petitioner s case, as the facts in hand, are clearly distinguishable, from the facts in Madhu Limaye s case (supra). 20. As noted, at the outset, in para 2, we are restricting ourselves only to prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s placed before the Court (date of return of rule). It is not in dispute that on the returnable date i.e. 12th October 2023, the petitioner was in judicial custody of the Competent Court. It is also not in dispute that prior to the filing of the present petition and even post, several orders have been passed by the Competent Court extending judicial custody of the petitioner from time to time. 21. At this juncture, at the cost of repetition, it is pertinent to note that the submissions that the petitioner's arrest was illegal, that the grounds of arrest were not furnished to him; and that his detention was beyond 24 hours, were never raised by the petitioner or his counsel, both, at the time of the first remand as well as the second remand i.e. on 2nd September 2023 and 11th September 2023 and the same has also not been disputed by the learned senior counsel for the petitioner. It is also not in dispute, that as far as supply of the grounds of arrest i.e. physical copy is concerned, the same was raised by the learned senior counsel for the petitioner, having regard to the latest judgment of the Apex Court in Pankaj Bansal (supra) delivered on 3rd October 2023, post filing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
