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TMI Blog2024 (5) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... olden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied. There is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22 (1) of the Constitution of India. The remand order dated 4th October, 2023 records that the copy of the remand application had been sent to the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Garg, Adv. Mr. Vivek Gaurav, Adv. JUDGMENT MEHTA, J. 1. Leave granted. 2. The instant appeal by special leave is preferred on behalf of the appellant for assailing the order dated 13th October, 2023 passed by learned Single Judge of the High Court of Delhi whereby the learned Single Judge dismissed the Criminal Miscellaneous Case No. 7278 of 2023 filed by the appellant seeking the following directions: - A. Declare the arrest of the Petitioner as illegal and in gross violation of the fundamental rights of the Petitioner guaranteed under Article 21 and 22 of the Constitution of India in relation to FIR No. 224/2023 dated 17.08.2023 PS Special Cell, Lodhi Road, Delhi Police; B. Declare and set aside the Remand Order dated 04.10.2023 passed by the Ld. Special Judge, Patiala House Court as null and void as the same being passed in complete violation of all constitutional mandates including failure to consult and to be defended by legal practitioner of his choice during the Remand Proceedings, being violative of Petitioner's right guaranteed under Article 22 of the Constitution of India. C. Direct immediate release of the Petitioner from custody in FIR No. 224/2023 dated 17.08.2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13th October, 2023. The said order is subjected to challenge in this appeal by special leave. Submissions on behalf of the appellant: - 8. Shri Kapil Sibal, learned senior counsel representing the appellant canvassed the following submissions in order to question the proceedings of arrest and remand of the appellant: - (i) That the FIR No. 224 of 2023(FIR in connection of which appellant was arrested) is virtually nothing but a second FIR on same facts because prior thereto, another FIR No. 116 of 2020 dated 26th August, 2020 had been registered by PS EOW, Delhi Police( EOW FIR ) alleging violation of Foreign Direct Investment (FDI) regulations and other laws of the country by the appellant and the company, thereby causing loss to the exchequer. A copy of the said FIR was, however, not provided to the appellant. By treating the EOW FIR as disclosing predicate offences, the Directorate of Enforcement (for short ED ) registered an Enforcement Case Information Report(for short ECIR ) for the offences punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002(for short PMLA ). The ED carried out extensive search and seizure operations at various places including ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Shri Sibal referred to the observations made in the judgment of Pankaj Bansal(supra) and urged that since the grounds of arrest were not furnished to the appellant at the time of his arrest and before remanding him to police custody, the continued custody of the appellant is rendered grossly illegal and a nullity in the eyes of law because the same is hit by the mandate of Article 22 (1) of the Constitution of India. (ix) Shri Sibal further urged that the view taken by a two-Judge Bench of this Court in Ram Kishor Arora v. Directorate of Enforcement 2023 SCC OnLine SC 1682 holding the judgment in Pankaj Bansal(supra) to be prospective in operation would also not come in the way of the appellant in seeking the relief. He pointed out that the judgment in the case of Pankaj Bansal(supra) was pronounced on 3rd October, 2023 whereas the illegal remand order of the appellant was passed on 4th October, 2023 and hence, the law laid down in the case of Pankaj Bansal(supra) is fully applicable to the case of the appellant despite the interpretation given in Ram Kishor Arora(supra). (x) That the arrest of the appellant is in gross violation of the provisions contained in Article 22 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the appellant well before the learned Remand Judge passed the remand order is unacceptable on the face of the record because the time of passing the remand order is clearly recorded in the order dated 4th October, 2023 as 6:00 a.m. Admittedly, the grounds of arrest were conveyed to Shri Arshdeep Khurana, Advocate for the appellant well after 7:00 a.m. It was contended that the noting made by the learned Remand Judge in the order dated 4th October, 2023 that the learned counsel for the appellant was heard on the application for remand is a subsequent insertion clearly visible from the remand order. The fact of subsequent insertion of these lines is fortified from the fact that the appellant had already been remanded to police custody by the time the Advocate was informed and the copy of the remand application containing the purported grounds of arrest was transmitted to him. (xvi) That the foundational facts in the FIR No. 224 of 2023 are almost identical to the allegations set out in the EOW FIR. The appellant had been granted protection against arrest by the High Court of Delhi in the EOW FIR. Owing to this protection, the mala fide objective of the authorities in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution of India to consult and to be defended by a legal practitioner was complied with in letter and spirit because the relative of the appellant, namely, Shri Rishabh Bailey, was informed before producing the appellant before the learned Remand Judge. Admittedly, Shri Rishabh Bailey had intimated the appellant s Advocate, Shri Arshdeep Khurana regarding the proposed proceedings of police custody remand of the appellant. (vi) He urged that the Advocate transmitted a written objection against the prayer for police custody remand over WhatsApp through the Head Constable Rajendra Singh and the learned Remand Judge has taken note of the said objection opposing remand in the remand order dated 4th October, 2023 and thus it would be futile to argue that the order granting remand is illegal in any manner. (vii)Learned ASG further contended that now the investigation has been completed and charge sheet has also already been filed and, thus, the illegality/irregularity, if any, in the arrest of the appellant and the grant of initial police custody remand stands cured and hence, the appellant cannot claim to be prejudiced by the same. (viii)He vehemently urged that there are sig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material placed on record. 14. Since, learned ASG has advanced a fervent contention regarding application of ratio of Pankaj Bansal(supra) urging that there is an inherent difference between the provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA, it would first be apposite for us to address the said submission. 15. In the case of Pankaj Bansal(supra), this Court after an elaborate consideration of the provisions contained in PMLA, CrPC and the constitutional mandate as provided under Article 22 held as below: - 32. In this regard, we may note that Article 22 (1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 of the Act of 2002 enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of Section 19 (1) of the Act of 2002, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer. 37. The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he/she so chooses. In this regard, the grounds of arrest in V. Senthil Balaji (supra) are placed on record and we find that the same run into as many as six pages. The grounds of arrest recorded in the case on hand in relation to Pankaj Bansal and Basant Bansal have not been produced before this Court, but it was contended that they were produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be wellnigh impossible for either Pankaj Bansal or Basant Bansal to record and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keeping with the provisions of Section 19 (1) of the Act of 2002. Further, as already noted supra, the clandestine conduct of the ED in proceeding against the appellants, by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, in consequence, their remand to the custody of the ED and, thereafter, to judicial custody, cannot be sustained. (emphasis supplied) 16. Section 19 of the PMLA and Sections 43A, 43B and 43C of the UAPA are reproduced hereunder for the sake of ready reference: - Section 19 of the PMLA 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, Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of provisions of Code. The provisions of the Code shall apply, insofar as they are not inconsistent with the provisions of this Act, to all arrests, searches and seizures made under this Act. 17. Upon a careful perusal of the statutory provisions(reproduced supra), we find that there is no significant difference in the language employed in Section 19 (1) of the PMLA and Section 43B (1) of the UAPA which can persuade us to take a view that the interpretation of the phrase inform him of the grounds for such arrest made by this Court in the case of Pankaj Bansal(supra) should not be applied to an accused arrested under the provisions of the UAPA. 18. We find that the provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B (1) of the UAPA is verbatim the same as that in Section 19 (1) of the PMLA. The contention advanced by learned ASG that there are some variations in the overall provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA would not have any impact on the statutory mandate requiring the arresting officer to inform the grounds of arrest to the person arrested under Section 43B (1) of the UA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been recognised and applied in all civilised countries. In our Constitution Article 21 guarantees protection of life and personal liberty not only to citizens of India but also to aliens. Thus, any attempt to violate such fundamental right, guaranteed by Articles, 20, 21 and 22 of the Constitution of India, would have to be dealt with strictly. 22. The right to be informed about the grounds of arrest flows from Article 22 (1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality committed at the time of arresting the accused and the grant of initial police custody remand to the accused. 23. Learned ASG referred to the language of Article 22 (5) of the Constitution of India and urged that even in a case of preventive detention, the Constitutional scheme does not require that the grounds on which the order of detention has been passed should be communicated to the detenue in writing. Ex facie, we are not impressed with the said submission. 24. The contention advanced by learned ASG based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Detention is based. (emphasis supplied) 26. Further, this Court in the case of Lallubhai Jogibhai Patel v. Union of India and Ors. (1981) 2 SCC 427, laid down that the grounds of detention must be communicated to the detenue in writing in a language which he understands and if the grounds are only verbally explained, the constitutional mandate of Article 22 (5) is infringed. The relevant para is extracted hereunder: - 20. . Communicate is a strong word. It means that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands. The whole purpose of communicating the ground to the detenu is to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him, in a language which he understands, then that purpose is not served, and the constitutional mandate in Article 22 (5) is infringed .. (emphasis supplied) 27. From a holistic reading of various judgments pertaining to the law of preventive detention including the Constitution Bench decision of this Court in Harikisan (supra), wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigating Agency. Admittedly, the copy of the FIR was not provided to the appellant despite an application having been made in this regard on his behalf till after the order of police custody remand was passed by the learned Remand Judge. 33. The copy of the FIR was provided to Shri Arshdeep Khurana, learned Advocate representing the accused for the first time on 5th October, 2023 and hence, till the time of being deprived of liberty, no communication had been made to the appellant regarding the grounds on which he had been arrested. 34. The accused was arrested on 3rd October, 2023 at 5:45 p.m. as per the arrest memo(Annexure P-7). As per Section 43C of the UAPA, the provisions of CrPC shall apply to all arrests, search and seizures made under the UAPA insofar as they are not inconsistent with the provisions of this Act. As per Section 57 CrPC read with Section 167 (1) CrPC, the appellant was required to be produced before the concerned Magistrate within twenty-four hours of his arrest. The Investigating Officer, therefore, had a clear window till 5:44 p.m. on 4th October, 2023 for producing the appellant before the Magistrate concerned and to seek his police custody remand, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were set out in the remand application which was transmitted through WhatsApp to Advocate Shri Arshdeep Khurana. However, the fact remains that the remand application was transmitted to the Advocate Shri Arshdeep Khurana after the remand had been granted by the learned Remand Judge which was at 6:00 a.m. as per the recording made in the remand order(reproduced supra). The contention of the learned ASG that there is variance in time of passing of the remand order as per the pleadings made on behalf of the accused appellant before the High Court of Delhi does not impress us in view of the time recorded in the remand order. 37. Learned Single Judge of the High Court of Delhi held at para No. 31 of the impugned order that the respondent had taken a categoric stand that the grounds of arrest were informed to the appellant orally and the same were also conveyed in writing as per the details set out in the memo of arrest. However, learned ASG fairly did not advance any such argument based on the arrest memo. 38. The interpretation given by the learned Single Judge that the grounds of arrest were conveyed to the accused in writing vide the arrest memo is unacceptable on the face of the rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case. 41. We may, however, briefly mention that the grounds of arrest as conveyed to the Advocate are more or less a narration of facts picked up from the FIR which in itself does not indicate any particular incident or event which gave rise to the alleged offences. However, the law is well settled that the FIR is not an encyclopaedia and is registered just to set the process of criminal justice in motion. The Investigating Officer has the power to investigate the matter and collect all relevant material which would form the basis of filing of charge sheet in the Court concerned. 42. Extensive arguments were advanced by Shri Sibal, with reference to the stipulations made in Sections 13, 16, 17, 18, 22C of the UAPA in order to contend that even if the FIR and the grounds set out in the remand application are taken to be true on the face of the record, apparently, the same convey just a fictional web spun around conjectures and surmises. It was contended that though a reference is made in the FIR that the appellant and one Neville Roy Singham, a foreign national were found to be discussing how to create a map of India without Kashmir and to show Arunachal Pradesh as a disputed area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds of arrest were actually conveyed to the appellant in writing before he was remanded to the custody of the Investigating Officer. 48. We have carefully perused the arrest memo(Annexure P-7) and find that the same nowhere conveys the grounds on which the accused was being arrested. The arrest memo is simply a proforma indicating the formal reasons for which the accused was being arrested. 49. It may be reiterated at the cost of repetition that there is a significant difference in the phrase reasons for arrest and grounds of arrest . The reasons for arrest as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making 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 Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the grounds of arres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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