9911796707
TMI Blog2025 (3) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... n ECIR bearing No. 18/2022 was recorded, on the basis of the FIR bearing No. 141 of 2022 [Bariyatu P.S.] dated 04.06.2022, lodged at Bariyatu police station, Ranchi Jharkhand under Sections 420, 467 and 471 of the Indian Penal Code, against one Pradeep Bagchi on the basis of complaint made by one Sri Dilip Sharma, Tax Collector, Ranchi Municipal Corporation, for submission of forged papers i.e., Aadhar Card, Electricity Bill and Possession letter for obtaining holding number 0210004194000A1 and 0210004031000A5. Investigation revealed that by submitting the forged documents, a holding number was obtained in name of Pradeep Bagchi for property at Morabadi Mouza, Ward No. 21/19, Ranchi having an area of the plot measuring 455.00 decimals approx. 4. Investigation further revealed that the above property belonged to Late B.M. Laxman Rao which was given to the Army and had been in the possession of the Defence/Army since independence. Investigation also reveals that by way of creating a fake owner (Pradeep Bagchi) of the above said property, it was sold to a company M/s Jagatbandhu Tea Estate Pvt. Ltd for which the consideration amount was shown to be Rs. 7 crores which was highly under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s quoted as under: "The instant writ petition has been filed under Article 226 of the Constitution of India. It appears that the instant writ petition has been assigned to the D.B.-II by the administrative order of Hon'ble the Chief Justice, therefore, this matter has been listed today before this Court. 2. The writ petitioner has prayed for following reliefs: (a) to read down and/or read into, consider, determine and expound the scope and ambit of Section 19 and Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) in consonance with the law declared by the Hon'ble Supreme Court inter alia, in State of Bombay v. Atma Ram Shridhar Vaidya, reported in AIR 1951 SC 157, Harkishan Vs. State of Maharashtra and Others, reported in 1962 SCC OnLine SC 117 and Vijay Madanlal Chowdhury vs Union of India reported in 2022 SCC OnLine 929 and declare that :- (i) Power to arrest prescribed in Section 19 of the PMLA cannot be exercised without issuing summon under Section 50 PMLA save in case of arrest effected in course of search and seizure under Section 17 and search of persons under Section 18; (ii) Summons issued under Section 50 (2) PMLA must set out the brief parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he is confining the prayer with respect to order dated 09.06.2023 passed by learned Special Judge, PMLA, Ranchi in ECIR 01/2023 only. 6. Mr. Amit Kumar Das, learned counsel representing the respondent Enforcement Directorate prays for 4 weeks' time to seek instruction and file affidavit in the matter since in the intervening period two consecutive holidays are falling. 7. As such, with consent of both the parties, list this case on 11th November 2024." [Emphasis supplied] 11. However, on subsequent date, the argument has been advanced by Ms. Meenakashi Arora, learned senior counsel for the petitioner, questioning the order of arrest dated 07.06.2023 as also the order dated 09.06.2023, which as per learned senior counsel is the order of remand. 12. The ground has been taken on behalf of petitioner by challenging the issue of remand that at the time of arrest the condition stipulated under Section 19 (1) of the PML Act, 2002 has not been followed. Further, the ground of arrest has not been provided, in writing, as required to be provided under the provision of Section 19 (1) of the PML Act, 2002 coupled with the judgment rendered by Hon'ble Apex Court in the case of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested, which would be evident from Annexure R-3 appended with the counter affidavit, wherein the entire details has been furnished regarding the culpability said to be the reason to believe for arrest of the writ petitioner. 17. It has been submitted that in the said communication the writ petitioner has put his signature in each page with date and on the last page, he has noted that 'read and understand' 'I have read my ground of arrest completely and also communicated to Mr. Dilip Ghosh." and below therein has put his signature with date i.e., 07.06.2023. In view thereof, submission has been made that the petitioner has been communicated with the reason of arrest, the day when he was taken into custody i.e., on 07.06.2023. Hence, the provision of Section 19 (1) of the PML Act, 2002 has fully been complied with. 18. The argument has been advanced that the arrest of the writ petitioner, therefore, is in consonance with the interpretation made by Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra); Pankaj Bansal vs. Union of India and Ors. (supra); V. Senthil Balaji Vs. State Represented by Deputy Director & Ors. (supra); Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid date. The aforesaid fact of confinement of the prayer has not been disputed by learned counsel for the petitioner, rather, it has fairly been submitted that argument has been advanced without taking note of the order dated 4th October, 2024 by which the writ petition has been confined only to the legality of order dated 09.06.2023, which is stated to be the remand order. Learned counsel for the petitioner, therefore, sought for two weeks' time to file affidavit on the issue and argue the matter further. 23. Learned counsel for the respondent-ED has also submitted that in the counter affidavit the fact about order dated 4th October, 2024 has not been taken care of and, as such, he also wants to file affidavit as was required to be filed in pursuance to order dated 4th October, 2024. 24. For ready reference, order dated 28.01.2025 is quoted as under: "The matter was heard by this Court on 5th December, 2024. After the hearing having been concluded, the order was reserved. Subsequent thereto, while going through the records, this Court has found that the argument has been advanced on behalf of the parties based upon the pleadings. The order-sheet shows that the prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detention/arrest of the petitioner since 7.6.2023 and remanded since 9.6.2023 (vide Annexure-4) in ECIR Case No.01/2023 [arising out of ECIR/RNZO/18/2022 dated 21.10.2022] as void-ab-initio, illegal and unconstitutional as being in gross violation of his fundamental rights guaranteed under Articles 14, 21 & 22 of the Constitution of India; (c) quashing/setting aside of, with all consequences, the remand order dated 9.6.2023 (Annexure-4) passed by the learned Court of Sri Dinesh Rai, Special Judge, PMLA, Ranchi in ECIR Case No.01/2023 [arising out of ECIR/RNZO/18/2022 dated 21.10.2022]; (d) directing for immediate release of the petitioner from custody in ECIR Case No. 01/2023 [arising out of ECIR/RNZO/18/2022 dated 21.10.2022]; presently pending learned Court of Sri Yogesh Kumar, Additional Judicial Commissioner-I-cum-Special Judge, CBI-cum-Special Judge under PMLA at Ranchi for offence under section 3 read with section 70 and punishable under section 4 of the Prevention of Money Laundering Act, 2002. 3. Mr. Kapil Sibal, learned Senior Counsel has appeared through Video Conferencing to represent the petitioner. He has referred page 53 of the pleadings, which is the arrest ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid fact of confinement of prayer has not been disputed by the learned counsel appearing for the petitioner, rather, learned counsel for the petitioner has fairly submitted that the argument has been advanced without taking care of the order dated 4th October, 2024 by which the prayer of the writ petition has been confined only to the legality of order of remand dated 09.06.2023. Learned counsel for the petitioner, therefore, has sought for two weeks' time to file affidavit on the issue and to argue the matter further. Mr. Amit Kumar Das, learned counsel appearing for the Enforcement Directorate, has also submitted that in the counter affidavit the fact about order dated 4th October, 2024 has not been taken care of and, as such, he also wants to file affidavit as was required to be filed in pursuance to order dated 4th October, 2025 wherein four weeks' time was sought for to file affidavit after confinement of prayer made on behalf of the petitioner, as referred in paragraph 5 of the said order. However, he has submitted that better would be, if he may be allowed to file affidavit after the affidavit will be filed on behalf of the petitioner, as per the prayer made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cting the arguments to the order of remand alone. Therefore, there is no requirement for a fresh hearing. A request has also been made by the learned senior counsel appearing for the appellant, that it would be appropriate that the same Bench of the High Court, may rehear the matter. 6. Learned counsel appearing for the respondent would submit that the findings in the impugned order, were necessitated on account of the submissions made on behalf of the appellant before the High Court and, therefore, it is the appellant who has brought about the said situation. In any case, it is for the High Court to take a further call on the matter. 7. Taking note of the aforesaid submissions, we request the Hon'ble Chief Justice of the High Court of Jharkhand at Ranchi to make a request to the very same Bench or any Bench, as per the roster, after ascertaining the convenience of the Bench that dealt with the matter earlier. The High Court is at liberty to pass orders forthwith, or hear the counsels appearing for the parties afresh. 8. The appeal stands disposed of accordingly. 9. Pending application(s), if any, shall also stand disposed of." 28. Accordingly, the present matter has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no material available on record to show, even remotely, that any proceeds of crime have been generated by the petitioner. It has been submitted that even if all the allegations leveled against the petitioner in the prosecution complaint are accepted at its face value and in their entirety and appreciated in their proper perspective in accordance with law settled by Hon'ble Apex Court the same do not make out any case defined under Section 3 punishable under Section 4 of the PML Act. 34. It has been contended that since the ground of arrest has not been provided and as such the very arrest is illegal. However, learned senior counsel did not deny the fact that the prayer of the writ petitioner has been confined only with respect to the order dated 09.06.2023, said to be the remand order as per the petitioner, but even accepting the same even then at the time of remand the ground of arrest has not been supplied since no document has been annexed with the order of remand. Therefore, the argument has been advanced that in absence of ground of arrest having not been available at the time of remand even if the prayer has been only with respect with respect to the issue of remand, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Abhishek Agarwal were present in the Court and thereafter, the petitioner was sent to Birsa Munda Central Jail in judicial custody. 40. It has been contended that even the order of remand has not been challenged by the writ petitioner since the order dated 09.06.2023, stated to be the order of remand, cannot be said to be order of remand rather it is the order by which the police custody of the writ petitioner has been given for the purpose of interrogation. 41. It has been submitted that the actual order of remand is 08.06.2023 which was on the basis of application filed by the prosecuting agency, filed under Section 167 Cr.P.C, herein ED and based upon the said application the writ petitioner was remanded and send to the Birsa Munda Central Jail, Ranchi in judicial custody. Therefore, the order dated 08.06.2023 is the actual order of remand and order dated 09.06.2023 is the order by which the police custody of the present writ petitioner has been given to the investigating agency for the purpose of custodial interrogation. 42. Further, it has been submitted that earlier the writ petitioner had moved before this Court by filing Bail Application being B.A. No. 7343 of 2023, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been made that the matter is to be adjudicated only on the issue of propriety/impropriety of order dated 09.06.2023, stated to be remand order by the writ petitioner. 47. Argument has been advanced that the learned counsel for the petitioner has relied upon the judgment passed by Hon'ble Apex Court that pertains to issue of arrest but herein the question which requires consideration by this Court is the propriety/impropriety of the order dated 09.06.2023. 48. So far as the fact of said Pankaj Bansal case, as relied upon the petitioner, is concerned, it is quite different since it would be evident from paragraph 21 of the judgment rendered in the case of Pankaj Bansal therein it has been referred that even the procedure which was required to be followed, as provided under the original text of Section 19 (1) of the Act, 2002, has not been followed. Therefore, the order of remand has been quashed and set aside holding the arrest to be illegal. 49. But, herein in the instant case, that is not the fact rather the correct fact is that the grounds of arrest has been supplied to the petitioner which has been read over by him and not only that he has also endorsed therein that he has go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 09.06.2023 only, which would be evident from order dated 4.10.2024 passed by this Court, and it needs to refer herein that order dated 4.10.2024 is still operative reason being that the same has not been questioned by filing any review/recall petition or challenging in higher forum rather the said order dated 04.10.2024 is admitted one. 55. For the sake of convenience, this Court is taking up issue no. I first and independently. 56. Originally, the writ petition was filed for the following relief(s): (a) to read down and/or read into, consider, determine and expound the scope and ambit of Section 19 and Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA) in consonance with the law declared by the Hon'ble Supreme Court inter alia, in State of Bombay v. Atma Ram Shridhar Vaidya, reported in AIR 1951 SC 157, Harkishan Vs. State of Maharashtra and Others, reported in 1962 SCC OnLine SC 117 and Vijay Madanlal Chowdhury vs Union of India reported in 2022 SCC OnLine 929 and declare that :- (i) Power to arrest prescribed in Section 19 of the PMLA cannot be exercised without issuing summon under Section 50 PMLA save in case of arrest effected in course of search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een filed for recall/review of the said order. It is further evident that the fact about confinement of prayer has rather been admitted, as would be evident from order dated 28.01.2025 whereby and whereunder the learned counsel for the petitioner has admitted the issue of confinement of prayer of the writ petition, and has sought for time to file affidavit. 59. Even the writ petitioner has approached to the Hon'ble Court by filing SLP (Crl) No. 2912 of 2025 challenging order dated 28.01.2025 but in the said SLP, it is no issue having been raised questioning order dated 04.10.2024. The said SLP (Crl) No. 2912 of 2025 stands disposed of vide order dated 3rd March, 2025 and as per observations made by the Hon'ble Supreme Court at paragraph 7 of the said order, as quoted hereinabove, the matter has been listed before this Bench. 60. It requires to refer herein that the supplementary affidavit has been filed on behalf of writ petitioner in pursuance to order dated 28.01.2025 wherein about confinement of prayer, as per order dated 04.10.2024, has not been disputed but merely because the Court has heard the matter and as such the plea is being taken that the matter is to be heard on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the confined prayer. 65. It is bounden duty of the litigant concerned in approaching the Court of law particularly exercising the extraordinary jurisdiction conferred to High Court under Article 226 of the Constitution of India, with clean hand and to bring all the facts to the notice of the Court. It cannot be acceptable that if anything has been recorded in the order being part of the record and if the Court has heard the litigant concerned even with respect to the other issues prior to the confinement of prayer it will not be proper for the Court to consider the entire issue contrary to the intention shown by the litigant concerned by confining the prayer. 66. It is settled principle of law that the writ jurisdiction is totally based upon the principle of pleading and once the pleading has been made and subsequent thereto confined, the Court will go on the premise of confinement limiting the pleading to the aforesaid extent. 67. Further it needs to refer herein that the Hon'ble Apex Court in the case of Ram Bali v. State of U.P., (2004) 10 SCC 598 at paragraph 9 of the said judgment, has held that where the High Court has specifically recorded to the effect that only two poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstance, this Court is of the view that if the Court has heard the litigant concerned on misconception having not been pointed out about order dated 04.10.2024 it does not mean that the Court will ignore the order already on record i.e., order dated 04.10.2024. Furthermore, there is no statement that any endeavor has been taken for recall/review of the said order. 70. It further needs to refer herein that it was the bounden duty of the litigant concerned either it is writ petitioner or the respondent-ED to point out about order dated 04.10.2024 and if that has not been pointed out and the Court has heard the matter it does not mean that ignoring the said order which is already on record and still in subsistence, the said issue is to be delve upon. 71. Further question is that if the contention of the writ petitioner will be accepted then what would happen to order dated 04.10.2024 which is still in operative and hearing the entire prayer of the writ petition on cost of ignoring the said order dated 4.10.2024, will it be improper on the part of the Court. 72. It is evident that in pursuance to order dated 28.01.2025, due affidavits have been filed by the parties and order dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and as such it would not be proper to delve upon the issue of arrest, therefore, judgment upon which reliance has been placed is not applicable. Therefore, issue of arrest is not being dealt with herein. 79. In view of discussions made hereinabove, the issue no. I is decided against the writ petitioner taking into consideration that after confinement of prayer by the learned senior counsel for the petitioner limited to the order dated 09.06.2023, the writ petitioner cannot be allowed to agitate the issue of propriety/impropriety of order of arrest dated 07.06.2023 and in light of confinement of prayer which would be evident from order dated 04.10.2024 passed by this Court and the said order still in existence as such it will not be proper for this Court to delve into the validity of order of arrest dated 07.06.2023. 80. Since Issue No. II and Issue No. III are interlinked, as such they are taken up together. 81. Admittedly, in course of argument, learned senior counsel for the writ petitioner has confined the prayer only to the issue of remand considering the remand order to be passed on 09.06.2023, as would be evident from order dated 04.10.2024. 82. We have already referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of V. Senthil Balaji Vs. State Represented by Deputy Director & Ors. (supra) has been passed on 07.08.2023 wherein consideration has been given with respect to the issue of Section 19 (1) holding therein that after firming a reason to believe that the person has been found guilty of an offence punishable under PMLA, 2002 the officer concerned is at liberty to arrest him, while performing his mandatory duty of recording the reasons, and that the said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. 87. However, subsequent thereto the issue crept up by taking note of mandate of Article 22 (1) of the Constitution of India as to whether the arrest can be well without being giving any information in writing to the person facing the accusation. That was the issue involved in the case of Pankaj Bansal Vs. Union of India & Ors (supra). The fact leading to the case of Pankaj Bansal Vs. Union of India & Ors (supra) in narrow compass is being referred herein, which reads as under: (i) A FIR No. 0006 dated 17-4-2023 was registered by the Anti-Corruption Bureau, Panchkula, Haryana, under Sections 7, 8, 11 and 13 of the Preventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer at 5.00 p.m. on the same day. This summon was in connection with the second ECIR. There is lack of clarity as to when summons in relation to the second ECIR were served on Basant Bansal. According to ED, he was served the summons on 13-6-2023 itself and refused to receive the same. However, it is an admitted fact that Basant Bansal was also present at ED's office at Rajokri, New Delhi, on 14-6-2023 at 11.00 a.m. It is also not in dispute that, while he was there, Basant Bansal was arrested at 6.00 p.m. on 14-6-2023 and Pankaj Bansal was arrested at 10.30 p.m. on the same day. (vi) These arrests, made in connection with the second ECIR, were in exercise of power under Section 19 (1) PMLA. The arrested persons were then taken to Panchkula, Haryana, and produced before the learned Vacation Judge/Additional Sessions Judge, Panchkula. There, they were served with the remand application filed by ED. (vii) The learned Vacation Judge/Additional Sessions Judge, Panchkula, initially passed order dated 15-6-2023 holding that custodial interrogation of the arrested persons was required and granted their custody to ED for 5 days with a direction to produce them before the court on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out hereinbefore, the order of remand would have to fail on that ground and the same cannot, by any stretch of imagination, validate an unlawful arrest made under Section 19 PMLA. 23. Viewed in this context, the remand order dated 15-6-2023 passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, reflects total failure on his part in discharging his duty as per the expected standard. The learned Judge did not even record a finding that he perused the grounds of arrest to ascertain whether ED had recorded reasons to believe that the appellants were guilty of an offence under the 2002 Act and that there was proper compliance with the mandate of Section 19 PMLA. He merely stated that, keeping in view the seriousness of the offences and the stage of the investigation, he was convinced that custodial interrogation of the accused persons was required in the present case and remanded them to the custody of ED! The sentence - "It is further (sic) that all the necessary mandates of law have been complied with" follows - "It is the case of the prosecution...." and appears to be a continuation thereof, as indicated by the word "further", and is not a recording by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and purpose to the constitutional and the statutory mandate of Section 19 (1) PMLA of informing the arrested person of the grounds of arrest, it has been held 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. The Hon'ble Apex Court while considering the particular case of said Pankaj Bansal has considered the admitted position that the investigating officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants and hence, it has been held that their arrest was not in keeping with the provisions of Section 19 (1) PMLA, 2002. Accordingly, the appeals before the Hon'ble Apex Court were allowed, setting aside the impugned orders passed by High Court as well as the impugned arrest orders and arrest memos along with the orders of remand passed by the learned Vacation Judge/Additional Sessions Judge, and all orders consequential thereto. Accordingly, the appellants were directed to be released forthwith. 91. Further, for ready reference, relevant paragraphs of the said Judgment i.e.45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon these judgments in order to consider the requirement which is to be fulfilled at the stage of Section 19 (1) of PMLA, 2002 and the remand can be said to be equal that too when the issue of arrest has been declined to be challenged by confining the prayer to challenge only the issue of remand, as would be evident from order dated 04.10.2024 as also the applicability of these judgments on the available facts of the present petition. 93. Subsequent thereto the judgment has come in the case of Ram Kishor Arora Vs. Directorate of Enforcement 2023 SCC OnLine SC 1682 wherein while considering the judgment passed in the case of Pankaj Bansal, (supra) the argument has been advanced on behalf of litigant concerned to apply the judgment rendered in the case of Pankaj Bansal retrospectively has been disagreed to on the ground of reference of specific word in the case of Pankaj Bansa 'henceforth'. For ready reference, paragraph 21 to 23 of the said judgment is quoted as under: 21. In view of the above, the expression "as soon as may be" contained in Section 19 PMLA is required to be construed as - "as early as possible without avoidable delay" or "within reasonably convenient" or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the judgment itself states 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. Hence, non-furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case [Pankaj Bansal v. Union of India, (2024) 7 SCC 576] could neither be held to be illegal nor the action of the officer concerned in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 PMLA as also Article 22 (1) of the Constitution of India, as held in Vijay Madanlal [Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1 : 2022 SCC OnLine SC 929] . 24. Insofar as the facts of the present case are concerned, it is not disputed that the appellant was handed over the document containing grounds of arrest when he was arrested, and he also put his signature below the said grounds of arrest, after making an endorsement that "I have been informed and have also read the abovementioned grounds of arrest." The appellant in the rejoinder filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Delhi which stands rejected by the learned Single Judge of the High Court of Delhi vide judgment dated 13-10-2023. The said order is subjected to challenge by special leave before the Hon'ble Apex Court. 98. The Hon'ble Apex Court has taken into consideration the ratio of the judgment rendered in the case of Pankaj Bansal Vs. Union of India & Ors (supra). The arrest of the said appellant was on 03.10.2023 but the judgment rendered in the case of Pankaj Bansal Vs. Union of India & Ors (supra) has been uploaded on 04.10.2023 and as such the ground was taken not to give any aid of judgment passed in the case of Pankaj Bansal Vs. Union of India & Ors (supra) even though the written communication regarding the ground of arrest of the appellant has not been furnished but the Hon'ble Apex Court has passed the order that merely because the judgment in the case of Pankaj Bansal Vs. Union of India & Ors (supra) has been uploaded on 04.10.2023 but the said Prabir Purkayastha was arrested on 04.10.2023 while the judgment passed in the case of Pankaj Bansal Vs. Union of India & Ors (supra) was delivered on 03.10.2023 and as such the case of Prabir Purkayastha has come within the ratio of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance. Till the prosecution complaint is filed, there is no requirement to provide the accused with a copy of the ECIR. The ECIR is not a public document. Thus, to introduce checks and balances, Section 19 (1) imposes safeguards to protect the rights and liberty of the arrestee. This is in compliance with the mandate of Article 22 (1) of the Constitution of India. 12. V. Senthil Balaji v. State similarly states that the designated officer can only arrest once they record "reasons to believe" in writing, that the person being arrested is guilty of the offence punishable under the PML Act. It is mandatory to record the "reasons to believe" to arrive at the opinion that the arrestee is guilty of the offence, and to furnish the reasons to the arrestee. This ensures an element of fairness and accountability. 16. Recently, in Prabir Purkayastha v. State (NCT of Delhi), this Court reiterated the aforesaid principles expounded in Pankaj Bansal (supra). The said principles were applied to the pari materia provisions of the Unlawful Activities (Prevention) Act, 1967. The Court explained that Section 19 (1) of the PML Act is meant to serve a higher purpose, and also to enforce the mandate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 2018 (CC No. 25 of 2020). 101. In the first FIR, six charge sheets have been filed. More than 2000 accused have been named in the charge sheets. 550 witnesses have been named. In the case of the second FIR, there are 14 accused named in the chargesheet. In connection with this FIR, 24 witnesses have been cited. In the third FIR, 24 accused have been named in the charge sheet and 50 prosecution witnesses have been cited. The offences alleged in the aforementioned crimes are mainly under Sections 120B, 419, 420, 467 and 471 of the Penal Code, 1860 and Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Section 34 of the Penal Code, 1860 has been invoked. 102. These offences are scheduled offences within the meaning of Section 2(y) of the PMLA. Therefore, relying on the final reports filed in aforementioned scheduled offences, for an offence of money laundering under Section 3 of the PMLA punishable under Section 4, the Enforcement Directorate (ED) registered an Enforcement Case Information Report (for short "ECIR") bearing ECIR No. MDSZO/21/2021 on 29th July 2021. 103. Consequently, the appellant was arrested on 14th June 2023 in connecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing for the appellant produced photographs which showed that while he was admitted to the hospital, he was handcuffed and chained to the hospital bed. Therefore, a notice was issued on 4th October 2024 to the Medical Superintendent of PGIMS, calling upon him to file an affidavit stating whether the appellant was handcuffed and chained to the hospital bed. The order dated 21st October 2024 records the admission of the Medical Superintendent of PGIMS that when the appellant was admitted to the hospital, he was handcuffed and chained to the bed. 108. The Hon'ble Apex Court while taking in to consideration the mandate of Article 22 of the Constitution of India has held that the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. The Hon'ble Apex Court has further observed as under: 15. We have already referred to what is held in paragraphs 42 and 43 of the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he holding number 0210004194000A1 and 0210004031000A5. The abovesaid holding numbers were verified by him and it was found that the Pradip Bagchi has submitted forged and fictitious documents to obtain the holding numbers. 1.2 Since offences under sections 420, 467 and 471 of IPC are scheduled offences under Part A of Schedule of PMLA, 2002 and the offence of money laundering under Section 3 of the PMLA, 2002 which is punishable under section 4 of PMLA, appeared to have been made out, an ECIR bearing No. RNZO/18/2022 was therefore recorded on 21.10.2022 and Investigation under the provisions of the Prevention of Money Laundering Act (PMLA) was initiated. 1.3 Investigation revealed that the above stated two holding Nos. 0210004194000A1 and 0210004031000A were obtained for property plot no. MS 557, Morabadi Mouza, ward no. 21/19, having an area of 455.00 decimals at Ranchi. It also revealed that the above stated property was later sold by the said Pradeep Bagchi (Aadhaar no. 511337882315, PAN AMBPB1317J) to one company M/s Jagatbandhu Tea Estate Pvt. Ltd (PAN AABCJ3705F, represented by Its Director Dilip Kumar Ghosh having Aadhaar no. 912605787465). This deed for acquiring the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs 7 crores by the purchaser and its receipt by the seller was deliberate, thoughtful and planned to give a legitimate appearance to the bogus transactions recorded in the sale deed for acquiring the above property in order to project the acquisition of proceeds of crime in the form of landed property as an untainted property. Scrutiny of IDFC First Bank account No 10060532973 has revealed that during the period from 16.10.2020 to 25.07.2022, an amount of Rs 4,69,80,000/- has been deposited in cash and out of which Rs 4,13,87,000/- is transferred to Rajesh Auto Merchandise Pvt. Ltd. Dilip Ghosh, the director and accomplice of Amit Kumar Agarwal has its office at FMI House, F3, Block GP, Sector-V, P.S Bidhannagar, Kolkata, West Bengal - 700091 which is the office premises of Amit Agarwal and his companies. 1.5 Statement of Bikash Jana and Dilip Shah, the person depositing cash in the above said bank account was recorded under section 50 of PMLA, 2002. It revealed that they are the employees of Amit Kumar Agarwal. Thus, the above facts and the sequence of the cash deposits in the above bank account of M/s Jagatbandhu Tea Estite's Pvt. Ltd shows that Amit Agarwal is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness activities of the company Jagatbandhu Tea Estates Pvt Ltd and he acquired the land in name of this beneficially owned company by paying only a commission of Rs. 25 lacs to Pradeep Bagchi. The market value of the land was Rs. 20,75,84,200 but the consideration amount was shown as 7 crores in the deed. The accused persons Amit Kumar Agarwal and Dilip Ghosh attempted to conceal the non-payment of Rs. 6.75 crores in the deed no. 6888 of 2021 dated 01.10.2021. and acquired the proceeds of crime in name of Jagatbandhu Tea Estate Pvt. Ltd. which was a criminal activity relating to schedule offences under PMLA, 2002. 4. The above discussions, lead to a reasonable belief that an offence of Money Laundering under section 3 of PMLA, 2002 has been committed by the accused persons namely Amit Kumar Agarwal and Dilip Ghosh as stated above. As per Section 3 of PMLA, 2002, whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or iaiming] it as untainted property shall be guilty of offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons have no complaint about any ill-treatment against arresting escort parties and information of arrest has been given to their family also. Ld. Lawyers on behalf of the accused persons namely Bidhyut Chourasia and Abhishek Agarwal were also present at the time of remand. They are taken into the judicial custody and remanded in this case and send to B.M.C. Jail Hotwar, Ranchi. O/c is directed to issue custody warrant at once. Produce the accused persons through video conferencing on 19.06.2023. Put up the record on 09.06.2023 for hearing on application filed u/s 167 Cr.P.C by investigating Officer ED to give him on remand to the accused persons for interrogation." 113. Thereafter, on the application filed on behalf of respondent-ED, the investigating agency, under Section 167 Cr.P.C to give the accused persons on remand for interrogation, the concerned Court has passed order on 09.06.2023 based upon that the custody of writ petitioner was handed over to the investigating agency for the purpose of custodial interrogation. The relevant portion of order dated 09.06.2023 is quoted as under: ".....The petition filed on behalf of the L.O. (ED) is within first 15 days from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding:- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten days. (ii) sixty days, where the investigation relates to any other offence. Sec. 209-........ (b) subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of, the trial." Sec. 309-........ (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agistrate but not in the custody of the police. 119. Further this Court is conscious with the fact that the act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. 120. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner, reference i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to have the abundant precaution that the person who is going to be taken into custody by the investigator, then such person must know the reason for arrest since it is the curtailment of the personal liberty and that is the reason the provision of Section 19 (1) has been considered to be a power which has been taken into consideration by the Hon'ble Apex Court in the series of judgments right from the judgment rendered in the case of Pankaj Bansal (Supra). 125. But there is no stipulation of fulfilment of condition, as required to be fulfilled at the time of arrest as per the mandate of Section 19 (1) of the Act, 2002 said to be applicable at the time of remand. There cannot be any dispute that at the time of remand also the application which is filed for the purpose of seeking remand must contain the specific reason along with the grounds of arrest and reasonable materials warranting the person concerned to be remanded at the appropriate stage i.e., after arrest. 126. We have considered the grounds of arrest dated 07.06.2023, as has been appended as Annexure R-3 to the counter affidavit and found therefrom that on each and every page the writ petitioner has put his signature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2023, whereby the petitioner has been sent for remand to the Birsa Munda Jail. 131. It is evident from order dated 08.06.2023 that the accused persons were directed to be produced through video conferencing on 19.06.2023, however, the record was directed to be put up on 09.06.2023 for hearing on application filed under Section 167 Cr.P.C by the investigating officer to give the accused persons on remand for interrogation. 132. Accordingly, the concerned Court has taken up the matter on 09.06.2023 to pass order on the petition dated 08.06.2023 filed under Section 167 Cr.P.C by the investigating agency-ED and after hearing the parties the learned Court has passed order on 09.06.2023 based upon that the custody of writ petitioner was handed over to the investigating agency for the purpose of interrogation. 133. From the content of order dated 08.06.2023 and 09.06.2023 it appears that the original order of remand is dated 08.06.2023 but the same is not under challenge. 134. The same could not have been challenged reason being that the writ petitioner has gone through the ground of arrest which was supplied to him on the same dated i.e., on 07.06.2023, bearing the signature of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the ground as noted in the written note of argument. The same has seriously been disputed by learned counsel for the ED on the ground that when order dated 09.06.2023, by which the court has allowed the investigating agency-ED to remand the petitioner for custodial interrogation, is under challenge then where is the question to raise the issue showing the writ petitioner to be innocent said to not commit any culpability. 142. We are in agreement with the submission advanced by learned counsel for the respondent-ED since while considering the issue of legality or propriety of the order dated 09.06.2023 there is no question of taking in to consideration the culpability said to be committed by the accused person(s) at the stage of remand. 143. Furthermore, learned counsel for the writ petitioner has also taken the ground of long incarceration of the writ petitioner of about 22 months. But we are of view that the issue of period of custody is not proper to be considered at the time of consideration of propriety of order of remand. 144. This Court in the entirety of the facts and circumstances, as has been discussed herein above, is of the view that in view of confinement of pray ..... X X X X Extracts X X X X X X X X Extracts X X X X
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