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TMI Blog2024 (4) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Petitioner as illegal and thereby releasing the Petitioner forthwith as the same is passed in violation of Constitutional mandate as enshrined in Article 22(2) of the Constitution of India and Section 19 of PMLA." 2. Mr. Aggarwal, learned counsel for the petitioner submitted that the petitioner's arrest and consequential remand was illegal and as such, the petitioner be released forthwith. According to Mr. Aggarwal, the petitioner not having been produced before the learned Special Court within 24 hours of his arrest as mandated in law, makes the petitioner's arrest illegal. 3. Mr. Aggarwal relied on the following dates : DATE EVENTS 03.08.2023 - The 4th summons was issued to the petitioner by the respondent-ED to join investigation on 07.08.2023 at 10:30 a.m. 07.08.2023 - The petitioner joined the investigation at 10:30 a.m. According to the petitioner, his personal liberty was curtailed and his movements restricted, inasmuch as, his mobile phone was seized by the respondent-ED at 10:30 a.m; and at all times since the petitioner entered the respondent-ED Office, the petitioner was surrounded by officers and the petitioner was not permitted to ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial Judge and also pleaded that he was not produced within 24 hours from the time of his arrest, the learned Special Judge failed to consider the same and accordingly, allowed the remand application filed by the respondent-Enforcement Directorate ('ED') and remanded the petitioner to custody till 10.08.2023. Learned counsel for the petitioner submitted that the learned Special Judge failed to consider the judgment of the Apex Court in the case of V. Senthil Balaji vs. State Represented by Deputy Director & Ors. 2023 SCC OnLine SC 934. 5. Per contra, Mr. Venegavkar, learned P.P submitted that there was no illegality in the arrest of the petitioner and that the petitioner was produced before the Court of competent jurisdiction well within 24 hours as mandated in law. According to Mr. Venegavkar, the time-line of events leading to the arrest and production of the petitioner is as under : DATE TIME EVENTS 07.08.2023 11:00 am Petitioner enters the premises of the ED, Delhi. Intervening period-accused was at the ED Office and no restriction on his movement 07.08.2023 10:00 pm Accused taken into investigation room 08.08.2023 03:30 am Questioning of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as contemplated under Section 19 of the PMLA. Mr Venegavkar further submitted that thus, the petitioner when he entered the office of the ED under Section 50, was not an accused and as such, became an accused only when his arrest was effected. In this connection, Mr. Venegavkar placed reliance on the judgment of Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929 and Vakamulla Chandrashekhar v. Enforcement Directorate 2017 SCC OnLine Del. 12905. 7. Mr. Venegavkar further submitted that even otherwise, if the contention of the petitioner that the petitioner was not produced within 24 hours from 11:00 a.m on 07.08.2023 as contemplated under Section 167 Cr. P.C, is taken into consideration, even then, the petitioner was produced well within time before the learned Special Court, taking into consideration that the period of travel would have to be excluded, i.e. the travel period from Delhi to Mumbai as contemplated under Section 167 Cr. P.C. 8. As far as the submission that the petitioner was not produced before the nearest Magistrate is concerned, according to Mr. Venegavkar, the said submission is flawed, inasmuch as, the term 'nearest Magistrate' used in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Judge, PMLA and the matter was taken up by the Court at around 5:15 p.m. 11. Having regard to the time-line and the facts, we are of the opinion that the time when the petitioner entered the Office of the ED, pursuant to summons under Section 50 of the PMLA, the petitioner was not kept in confinement, much less, detained. It is not in dispute that when Section 50 summons was issued, the petitioner was not an accused, inasmuch as, Section 50(2) of the PMLA clearly states that the Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have the power to summon "any person" whose attendance is considered necessary, whether to give evidence or to produce any records during the course of any investigation or proceeding under the Act. It is Section 19 of the PMLA which gives power to the Investigating Officer to arrest an individual against whom material is collected as contemplated under Section 2(1)(na), after following the process contemplated under Section 50 of the PMLA. Thus, the petitioner became an accused only when he was arrested under Section 19 of the PMLA, after the authority on the basis of material in his possession had reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, thereby depriving him of his right to sleep, as guaranteed under Article 21 of the Constitution. Mr. Aggarwal submitted that the petitioner is aged about 64 years, having medical issues and as such, there was no tearing hurry for the ED to record the statement of the petitioner post mid-night and the petitioner could have well been summoned on the next date or even a few days thereafter. When we questioned Mr. Venegavkar with respect to why the statement was recorded so belatedly, post midnight, he submitted that the petitioner had no objection to the recording of his statement belatedly and hence, the same was recorded. 16. Voluntary or otherwise, we deprecate the manner in which the petitioner's statement was recorded so late in the night which went on post midnight, till 3:30 a.m. It is pertinent to note and as contended by the learned Spl. P.P, when a person is summoned under Section 50 of the PMLA, the person is 'not an accused', and that the said person could well be a witness or a person who is associated or has knowledge about the offence being investigated. True and hence, at this juncture, it would be apposite to reproduce S. 50 of the PMLA, which reads thus: "(1) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorised officer. It is pertinent to note that Section 50(4) of PMLA provides that proceedings under sub-Section (2) and (3) shall be deemed to be a 'judicial proceeding' with the meaning of Section 193 and Section 228 of the Penal Code, 1860. 18. Thus, statements recorded under Section 50(2) of the PMLA are not statements recorded under Section 161 of the Cr. P.C; and infact, are treated as evidence. It is also pertinent to note, that the ED officers are not police officers, inasmuch as, the said proceeding before the officers is a judicial proceeding, as evident from Section 50(4) and as held in Vijay Madanlal Choudhary (Supra). Therefore, it can be gauged from the scheme of the statute that investigation under the PMLA stands on a different footing from an investigation under the Cr. P.C, inasmuch as, the statements given under Section 50(2) and (3) of the PMLA are required to be signed and the proceeding under sub-sections (2) and (3) of Section 50 are deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the IPC. 19. Thus, a person summoned under Section 50 of the PMLA, should have his statement necessarily recorded during earthly hours, as the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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