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TMI Blog2024 (7) TMI 1594X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the argument in light of the three-Judge Bench decision in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT (LB)], holding that Section 65 of the Act of 2002 predicates that the provision of Code of 1973 shall apply insofar as they are not inconsistent with the provisions in respect of arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings thereunder. Taking note of Section 19 of the Act of 2022 which prescribes the manner of arrest of a person involved in money laundering, with the inbuilt safeguards to be adhered to, by the authorised officers, such as recording of reasons for belief regarding involvement of the person in the offence of money laundering and, that the reasons shall be recorded in writing and while effecting arrest, the grounds of arrest are to be informed to that person. Reliance was also placed on the decision of the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal Vs. Union of India & Ors. [2016 (12) TMI 1014 - BOMBAY HIGH COURT], where it was held that the grounds of arrest are to be informed to the person arrested and that would mean that they should be communicated at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3/2/24 passed by the Ld.Special Judge, MPID Court, Greater Bombay, null and void and further all the subsequent remands as the same being passed in complete violation of all the constitutional mandates i.e. failure to comply with Section 50 of Code of Criminal Procedure being violative of the fundamental rights of the petitioner guaranteed under the Constitution of India. (C) That this Hon'ble Court be pleased to direct the release of the petitioner in F.I.R.no.68/2020, vide special MPID case no.796 of 2023 of Malad Police Station, pending on the files of Special Judge, Greater Mumbai. (D)That this Hon'ble Court be pleased to issue writ of habeas corpus granting interim bail to the petitioner pending the dinal hearing of the writ petition." 2. We have heard learned counsel Mr.Rishi Bhuta for the Petitioner and the learned Additional Public Prosecutor Ms.Sharmila Kaushik for the State. The original complainant, at whose behest the C.R. was registered, has filed an intervention application being IA(St) No.14637 OF 2024 and, hence, we have heard learned counsel Mr.Sudeep Pasbola for the intervenor. By consent of the learned counsel representing the parties, we issue Rule. Rule is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the reasons for arrest, he is arrested and the necessary entries are taken in the Register and the information about his arrest is given to his mother. It also record that at the time of effecting the arrest, the directives issued by Hon'ble Apex Court have been strictly complied with. 6. It is this aspect of communicating the grounds of his arrest, which is the thrust of the contention of Mr.Bhuta, as he place reliance on Article 22(1) of the Constitution of India and Section 50 of the Criminal Procedure Code, 1973 and it is his contention that there is no compliance of these provisions. Mr.Bhuta has placed reliance upon the decision of the Apex Court in the case of Pankaj Bansal Vs. Union of India & Ors. 2023 Live Law (SC) 844, delivered on 03/10/2023, where the right conferred under Article 22(1) of the Constitution has been widely construed, by declaring that the grounds of arrest shall be furnished to the arrested person in writing as a matter of course and without exception and this was specifically made imperative for the reason that there would be always a contest whether the grounds were orally communicated or not and to avoid such a precarious condition and consequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c, the Apex Court has observed that it would be essential for the arrested person to be aware of the grounds on which the authorised officer arrested him/her under Section 19 and the basis for the officer's 'reason to believe' that he/she is guilty of an offence punishable under the Act of 2002. It is in these peculiar facts, Mr.Pasbola submits that the compliance as mandated by Article 22(1) of the Constitution to be read with Section 19 of the Act of 2002 is held to serve higher purpose and must be given due importance. In addition, he would submit that since Prabir Purkayastha (supra) is the decision pronounced on 15/05/2024, as regards other offences other than the one covered under the PMLA, which was the focus of Pankaj Bansal (supra), and it is from the date of decision in Prabir Purkayastha (supra), the compliance would be mandatory. 8. It is Chapter III of the Constitution of India, which has enumerated the fundamental rights, which have been time and again construed to be inherent and any law, which abrogates or abridges such right, would be violative of the basic structure doctrine, including a right of protection against arrest and detention in certain cases and sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. In light of the aforesaid provision, it is a right of an accused to be informed as soon as, may be of the grounds of such arrest and upon his arrest, inform his friend, relative or a person, as he may desire about his arrest and he should be apprised of this right, as soon as he is brought to the police station. 11. Chapter V in Code of Criminal Procedure, 1973 comprise of provisions for arrest of person and the procedure to be followed while making an arrest. It include a provision in form of Section 46, setting out how the arrest is to be made and also prescribes the manner in which the procedure shall be at variance, where a woman is to be arrested. Arrest of an accused, therefore, forms an important aspect of investigation and this power can be exercised, either by the police officer or other person, so authorised, or even by the Magistrate, when the offence is committed in his presence, whether be a Executive or Judicial Magistrate, when he may either himself arrest or order any person to arrest the offender. The arrest would amount to deprivation of liberty of a person, against whom a reasonable complaint is made or credible information is received or reasonable suspici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esteeshall prepare a memo of arrest at the time of arrest and such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held incustody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arresteemust be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguards provided to a person with a view to protect his personal liberty against any unjustified assault by the State. In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. P.C. confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this Section no formality is necessary while arresting a person. Under Section 49, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time till they were taken into judicial custody. In light of the decision of the Constitution Bench in Vijay Madanlal Choudhary Vs. Union of India 2022 (10) SCALE 577, the Bansals approached the Punjab & Haryana High Court, praying for 'reading down' and/or 'reading into' the provisions of Section 19, by asserting that the remand orders were passed in a patently routine manner by the Judge, without satisfying himself about due compliance of mandate of Section 19 and, therefore, it was prayed that the remand orders as well as the underlying arrest orders and arrest memos be quashed and set aside. The Division Bench of the Punjab & Haryana High Court disallowed their prayer under the mistaken impression that there was challenge to the validity of the provision. The Apex Court considered the argument in light of the three-Judge Bench decision in Vijay Madanlal Choudhary, holding that Section 65 of the Act of 2002 predicates that the provision of Code of 1973 shall apply insofar as they are not inconsistent with the provisions in respect of arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings thereunder. Taking note of Section 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him/her under Section 19 and the basis for the officer's 'reason to believe' that he/she is guilty of an offence punishable under the Act of 2002. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the Act of 2002, is meant to serve this higher purpose and must be given due importance." 17. By making reference to the arrest order in Form No.III appended to the Prevention of Money Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005, it was noted that the format would be followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 19. In light of the aforesaid observation, the decision of Delhi High Court in Moin Akhtar Qureshi (supra) and the Bombay High Court in Chhagan Chandrakant Bhujbal (supra), taking a contrary view, was held not to lay down the correct law, by a categorical observation as below :- "35. ….To give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception". 20. This direction is only intended to restrict to attain the statutory mandate of Section 19(1) of PMLA and in no other case, is the submission of Mr.Pasbola. We must immediately reject his submission, as in Prabir Purkayastha (supra), this position is clarified and worth it to note that in this case, the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd any infringement of this fundamental right would vitiate the process of arrest and remand. It is also clarified that mere fact that the charge-sheet has been filed in the matter, would not validate the illegality and its unconstitutionality, committed at the time of arrest of the accused and the grant of initial police custody remand to the accused. 22. The concern expressed by Mr.Pasbola as regards the applicability of law, as laid down in Pankaj Bansal (supra), having a prospective effect, and since, a similar concern is vented before the Apex Court, came to be answered in the following words :- "45. It was the fervent contention of learned ASG that in the case of Ram Kishor Arora (supra), a two-Judge Bench of this Court interpreted the judgment in the case of Pankaj Bansal (supra) to be having a prospective effect and thus the ratio of Pankaj Bansal (supra) cannot come to the appellant's aid. Indisputably, the appellant herein was remanded to police custody on 4th October, 2023 whereas the judgment in the case of Pankaj Bansal (supra) was delivered on 3rd October, 2023. Merely on a conjectural submission regarding the late uploading of the judgment, learned ASG cannot be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilarly, in terms of Article 144, since all the authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court, the law shall be followed by all concerned, including the Courts as well as the authorities exercising the power of arrest. In light of the elucidation of law in the above manner, the focus being clause (1) of Article 22 of the Constitution of India, when we have examined the present case, it is evident that the grounds of arrest were not furnished to the Petitioner in writing and the arrest/surrender form/panchnama produced before us, column 8 is an unfilled column, which in fact expected the arresting authority to ensure, "whether the arrested person, after being informed of the grounds of arrest and his legal rights, was duly taken into custody on ---(date) --(hours) ---- (place)". The form only indicate that the intimation of arrest was given to Laxmi Pandurang Naik, mother of the Petitioner. The station diary entry record that note of his arrest has been taken in the concerned Register and he was apprised of the reasons of arrest (vVdsph dkj.ks) and, thereafter, he was arrested. The procedure followed by Respondent No.2 is evident ..... X X X X Extracts X X X X X X X X Extracts X X X X
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