9911796707
TMI Blog2025 (3) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... "It is, therefore, prayed that this Hon'ble Court may kindly be pleased to allow the present petition and quash order of issuance of Non-Bailable warrant and the Warrant of arrest in ECIR No. RPZO/10/2022 case titled as Satish Chandrakar Vs. Enforcement Directorate and Others, issued against the petitioner herein passed by Learned Special Court, PMLA Raipur dated 04/09/2023 in the interest of justice" 2. The brief facts of the case are that the ECIR bearing No. RPZO/10/2022, dated 06.10.2022 and amended ECIR dated 02.09.2023 has been registered against the present petitioner and other accused persons for the offence under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (hereinafter called as PMLA, 2002"). In the ECIR, it is alleged that about 6 FIRs have been registered against the various accused persons for the offences of Cheating and Criminal Conspiracy, which are the scheduled offences under the PMLA, 2002. The said FIRs have been registered, whose details are given herein below: (i) FIR No. 112 of 2022, dated 30.03.2022, registered at Police Station Mohan Nagar, District Durg for the offence under Sections 120B and 420 of IPC, (ii) FIR No. 206 of 2023, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued summons under Section 50 of the PMLA, 2002 to the petitioner knowing fully well that the petitioner was detained in Australia and asked him to appear on 02.09.2023 before the ED. The next summons was again issued on 02.09.2023 and the petitioner was asked to appear on 04.09.2023. The said summons was issued for serving it at the residential address of the petitioner in India. Despite knowing the fact that he is a resident of Dubai, which is non-compliance of the guidelines of the Ministry of Home Affairs bearing No. 25016/17/2007-Legal Cell, dated 11.02.2009. Since the above-mentioned summons was issued at residential addresses in India, it was not served upon the petitioner and thereafter, he came to know through diverse channels that a warrant of arrest has been issued by the learned Special Court, Raipur. On 04.09.2023, the learned Special Court (PMLA-2002) Raipur, Chhattisgarh issued a non-bailable warrant (open-ended) against the petitioner for his personal appearance. This order was passed by the learned Special Court on 04.09.2023 on an application filed by the respondent/ED under Section 70 of the CRPC read with Section 65 of PMLA-2002. This order is under challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner would submit that on 31.08.2023, the ED issued a summon knowing fully well that the petitioner is in Australia, yet they asked him to appear on 02.09.2023. The petitioner is a citizen of Vanuatu and the Australian Authority detained him in immigration. The petitioner cannot appear on 02.09.2023 before the ED and they again issued another summon for his appearance on 04.09.2023. Thereafter, an application was moved under Section 70 of CRPC on 04.09.2023 itself and the learned Special Court has passed the order against the petitioner. He would further submit that the PMLA prescribed a procedure that has to be followed, if a person is not an accused and a person, who is an accused. The PMLA is a complete Code and the provisions of Criminal Procedure Code, 1973 does not apply and therefore the whole proceedings are null and void. He would further submit that on the basis of predicate offence, the ED can lodge ECIR and proceed. The proceed from the predicate offence become the proceeds of crime. If that proceeds of crime put in the bank and turned the illegal money as legal, it is called 'Money Laundering'. In the original FIRs, the petitioner was not shown as an accused. The s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end such summon or warrant in duplicate in such form, to such Court, Judge or Magistrate through such Authorities, as the Central Government may, by notification shall cause the same to be executed and Section 63 of the PMLA-2002 deals with the summons issued by the ED. He would further submit that the petitioner was not in India and no summon can be issued to a person, who is not located in India, because the jurisdiction of the Court is circumscribed by the local police station. If the accused is outside of India, the summon can go through the Ministry of External Affairs and will be served through the Commission, where he is located and then only the person, who is served with the summon have to abide to obey. The petitioner, at the time when the summon was issued to him i.e. on 01.09.2023 was at Australia, the ED was well within knowledge that the petitioner cannot appear on 02.09.2023 and he was detained by the Australian Immigration Authority and sent back to Dubai. Again another summon was issued on 02.09.2023 and asked to appear on 04.09.2023, which is a pure mala fide exercise of powers. 11. The ED has filed its application under Section 70 of the CRPC, which does not dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would further submit that UAE is a contracting State with India for the purpose of Section 105 of CRPC. As per the circular dated 11.02.2009, issued by the MHA, the procedure prescribed in Para 3 in the said circular is applicable, but the same has been issued in gross violation of the provisions of Section 105 of CRPC which are void ab initio. 14. It is also the submission of the learned Senior Counsel that the Special Court has failed to ascertain the manner in which the summon under Section 50 of PMLA-2002 was issued by the ED. Despite having knowledge that the petitioner is not in India, pasted the summon on the premises of the petitioner in India. He would submit that in the application filed by the respondent/ED under Section 70 of the Code of Criminal Procedure, 1973 read with Section 65 of PMLA-2002, the respondent/ED in Para 8 itself shows that the petitioner has obtained the passport of Vanuatu, then they have to proceed in accordance with the applicable laws. Articles 5, 6 and 8 of the Constitution of India provide the circumstances in which a person can obtain Indian citizenship and as per Article 9 of the Constitution of India if the person has voluntarily acquired t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the petitioner is not cooperating with the investigation, ignoring the fact that the manner in which the summon is said to have been served upon him, particularly when he was detained by Australian Immigration and the procedure adopted by ED for obtaining non-bailable warrant against the petitioner, is illegal. The learned Special Judge has failed to consider that to record the reasons for arrest is mandatory as required under Section 19 of PMLA-2002 and relying upon the judgment passed by the Hon'ble Supreme Court in the matter of Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51 would submit that to effect an arrest, an officer authorized has to assess and evaluate the material in his possession and if the material in his possession giving rise to the reason to believe that any person has been guilty of an offence under the PMLA-2002, he may arrest such person. The petitioner is neither a fugitive nor a proclaimed offender and is willing to cooperate with the respondent/ED. The petitioner is the resident of UAE since last 03 years. While carrying out of service of summons under Section 50 of PMLA-2002, dated 01.09.2023 and 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... others and started an investigation under the provisions of PMLA, 2002 on the basis of the charge sheet bearing No. 157 of 2002, dated 29.07.2022 filed by the Police Station Mohan Nagar, Durg against Alok Singh Rajput, Ram Pravesh Sahu, Kharag @ Raja Singh and others. The said charge sheet was filed under Sections 120-B and 420 of IPC for being involved in online betting in live Ludo, Football, Casino Games and Marks through Mahadev Book. As per the charge sheet filed by the State Police, the raid was conducted based on secret information and the aforesaid three accused persons were arrested with a set-up of Laptops, by which they collected money by creating an online ID and then with this money put bets for others through Mahadev Online Books on online Cricket match, Horse racing, Greyhound racing and Kabaddi etc. Upon interrogation, they disclosed the names of Abhishek and Pintu, who taught them about the making of online IDs and placing bets in Cricket matches and other sports through online banking. The Laptops, Mobile phones, Passbooks of various banks, Debit-Credit cards, SIM cards, cheque books and cash were seized from their premises, which gave rise to the recording of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations. 21. The present petitioner hails from Bhilai in Chhattisgarh, where he was running a juice shop till 2017. Suddenly, he remarkably risen in the world of illegal gambling. He is the co-owner of online betting platform Mahadev Online Book and he in association with Ravi Uppal has established a betting empire and indulged in money laundering. The present petitioner and Ravi Uppal are the main beneficial owners of Mahadev Online Book. They are running their Mahadev Online Book through Massive Call Centres, where WhatsApp and telegram closed groups are operated and Bainami bank accounts are used for money transactions. They have created a huge network and keep 70% of the betting profit. They created a network in which without coming to India they are able to run these panels and managed to lure large number of penal seekers by vulgar display of their wealth. The present petitioner had spent more than 200 Crores in cash in his wedding held in Ras-al-Khaimah, UAE in February 2023. Private jets and celebrities were hired for his marriage function. Wedding planners, Dancers, Decorators, etc. were hired from Mumbai and Hawala channels were used to make payments to them. He run the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Enforcement, 2024 SCC Online Delhi 1658, he would submit that the ED has the power to issue summon to any person under Section 50 of PMLA-2002 and the person so summoned is bound to attend in person or through authorized agent and to state truth upon the subject concerning, which he is expected to make statement and produced document as may be required by virtue of Section 50 (3) of the PMLA-2002. 23. The issuance of non-bailable warrant against the petitioner was requested only to ensure the petitioner's presence in the investigation. Section 19 of the PMLA-2002 was not invoked and therefore, there is no requirement of recording of reasons to believe or putting up material before the learned Special Court. When the application was filed before the learned Special Court, after going through the entire record of the case, they issued the non-bailable warrant against the petitioner by observing that the petitioner is evading his presence before the ED. He would further submit that the service of summons can be executed through the Ministry of Home Affairs if the same was to be executed at a foreign address or any other contact details of the petitioner, but in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The power of attorney is not competent to swear affidavit on behalf of the principle with respect to the fact, which was within the knowledge of the principle. The affidavit itself is faulty, which is against the procedure prescribed in Order 19 Rule 3 of Code of Civil Procedure, 1908. The affidavit shall be confined to such fact as the deponent is having his own knowledge to prove. In the present case, a number of facts, which the deponent was not having his own knowledge and such affidavit is liable to be ignored. 26. Another objection raised by the respondent/ED is that the warrant issued against the petitioner cannot be canceled in absentia. The person against whom the warrant has been issued has to present himself before the Court for the warrant to be canceled, and then only the petition can be entertained. At the very outset, an option/proposal was given to the petitioner that he may join the investigation and till then, the warrant may not be executed against him, but he denied the same. Denial of the petitioner itself shows that he is not willing to join the investigation/trial and does not want to come India. It has been held in the case of 'Ashok Malik v. M/s. Soga I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, the person concerned is bound to appear and to make a statement. As per the case of 'Vijay Madanlal Choudhary and others v. Union of India' 2022 SCC Online SC 929, the petitioner does not assume the character of an accused. 29. Section 50 of PMLA-2002 provides that the ED is statutorily empowered to summon "any person" and it is the duty of such person to attend the same. Since the petitioner failed to appear before the ED, an application was moved by the ED requested only to ensure the petitioner's presence in investigation. Since the provisions of Section 19 of PMLA-2002 was not invoked, there was no requirement of recording of reasons to believe or to produce the material before the Special Court. After considering the entire material produced before the learned Special Court and also under the facts and circumstances of the case, passed its order on 04.09.2023 and issued a non-bailable warrant against the petitioner. Since the ED did not have the foreign address or any contact details of the petitioner, he served the summons in accordance with the law at his last known address in India. Section 65 (1) of the PMLA-2002 is applicable where the person to be summoned resides ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CRPC. He would further submit that the judgment of Amit Ahuja v. Gian Prakash Bhambri is overruled in Mangal Dass Gautam v. State of Haryana, 2018 SCC Online P&H 8136 (Para 41). In Amit Ahuja's case has been said to be incorrect position of law and therefore the petitioner can file a petition through his power of attorney. In the criminal proceeding, the affidavit is not required to be filed along with the petition. In another judgment, in Shankar Finance v. State of Andhra Pradesh, 2008(8) SCC 536 (Para 12, 15) because he is not affirming any facts, but he is challenging the issuance of warrant of arrest. The T.C. Mathai's case (supra) is not applicable in the present case, as in T.C. Mathai's case the power of attorney holder himself was the petitioner, but in the present case, it is not the situation. The present petition has been filed by the petitioner and in support of the petition, an affidavit has been sworn by his power of attorney holder. 33. I have heard learned counsel for the parties and perused the material annexed with the petition by the parties. 34. The respondent/ED has raised a preliminary objection regarding maintainability of the present petition on the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arance of an accused in a court it is no compliance with it if a power of attorney holder appears for him. It is a different thing that a party can be permitted to appear through counsel. Chapter XVI of the Code empowers the Magistrate to issue summons or warrant for the appearance of the accused. Section 205 of the Code empowers the Magistrate to dispense with "the personal attendance of accused, and permit him to appear by his pleader" if he sees reasons to do so. Section 273 of the Code speaks of the powers of the court to record evidence in the presence of the pleader of the accused, in cases when personal attendance of the accused is dispensed with. But in no case can the appearance of the accused be made through a power of attorney holder. So the contention of the appellant based on the instrument of power of attorney is of no avail in this case."" 36. In T.C. Mathai's (supra), the ratio laid down in Para 15 of the judgment has been relied upon in Amrinder Singh @ Raja's case (supra) and in Para 16, it has been observed that: "16. In this context reference can be made to a decision rendered by a Full Bench of the Madras High Court in M. Krishnammal v. T. Balasubramania Pil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and criminal proceedings for defamation as required before any Court in India, who sworn affidavit in the present case, which has been filed by the petitioner. 38. When Amit Ahuja's case has been overruled by the Division Bench of Punjab and Haryana High Court, the considerations in T.C. Mathai's case are different than the present case and the ratio laid down in Amrinder Singh @ Raja's case (supra) is based on the aforesaid two cases of Amit Ahuja and T.C. Mathai's case, the benefit cannot be extended to the respondent/ED by holding that the petition filed by the power of attorney holder of the petitioner, is not maintainable. 39. There is nothing on record to show that the power of attorney of the petitioner is disabled by filing affidavit in support of the petition or the petition filed through power of attorney is not maintainable. The preliminary objection regarding maintainability of the petition through power of attorney holder is not sustainable and hereby rejected. 40. The second objection of the respondent/ED that the petition is not maintainable in absentia, the respondent/ED has relied upon the judgment of Ashok Malik v. M/s. Soga Impex Pvt. Ltd. and another, 2012 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e warrant against the accused when he failed to cooperate and deliberately avoided the process of law. In the matter of Ottaviio Quattrocchi (supra), the Delhi High Court in Para 44 has held that: "46. In paras 21 to 24 of the report, the Apex Court dealt with the extent of the power of Magistrate to order issuance of non-bailable warrant of arrest of accused/ during the course of investigation. The same reads : "21. That Section 73 confers a power upon a Magistrate to issue a warrant and that it can be exercised by him during investigation also, can be best understood with reference to Section 155 of the Code. As already noticed under this section a Police Officer can investigate into a non cognizable case with the order of a Magistrate and may exercise the same powers in respect of the investigation which he may exercise in a cognizable case, except that he cannot arrest without warrant. If with the order of a Magistrate the police starts investigation into a cognizable and non-bailable offence, (like Section 466 or 467 (Para I) of the Indian Penal Code) and if during investigation the Investigating Officer intends to arrest the person accused of the offence he has to seek fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson who is accused of a non-bailable offence and is evading arrest we need answer the related question as to whether such issuance of warrant can be for his production before the police in aid of investigation. It cannot be gainsaid that a Magistrate plays, not infrequently, a role during investigation, in that, on the prayer of the Investigating Agency he holds a test identification parade, records the confession of an accused or the statement of a witness, or takes or witnesses the taking of specimen handwritings etc. However, in performing such or similar functions the Magistrate does not exercise judicial discretion like while dealing with an accused of a non-bailable offence who is produced before him pursuant to a warrant of arrest issued under Section 73. On such production, the Court may either release him on bail under Section 439 or authorise his detention in custody (either police or judicial) under Section 167 of the Code. Whether the Magistrate, on being moved by the Investigating Agency, will entertain its prayer for police custody will be at his sole discretion which has to be judicially exercised in accordance with Section 167(3) of the Code. Since warrant is and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20 (3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of sub-section (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20 (3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20 (3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence." 45. It is apparent from the reading of Section 50 of PMLA-2002 as well as the judgment of Vijay Madanlal Choudhary (supra) that the power conferred upon the ED by virtue of Section 50 of PMLA-2002 empowers them to summon any person whose attendance may be crucial either to give some evidence or to produce any record during the course of investigation or proceeding under the PMLA-2002. The persons, so summoned, are also bound to attend in person or through authorized agent and are required to state truth upon any subject concerning which such person is being examined or is expected to make statement and to produce document, as may be required in the case. 46. In the matter o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct details of the petitioner and therefore, the summons was served in accordance with the Rules at the last known address of the petitioner in India. 48. Section 73 of the CRPC gives power to the Magistrate to issue warrant against an accused of a non-bailable offence, who is evading his arrest. The arrest of an accused is an interior part of investigation. It is necessary to reproduce Section 73 of CRPC hereinbelow: "73. Warrant may be directed to any person. (1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest. (2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge. (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders." 73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the territory of India. The provisions of Section 105-A can be invoked only when it pertains to two contracting states, which means that any country outside India on one hand on Indian territory on the other hand, if there exists a treaty between the two countries. The petitioner has obtained the citizenship of the other country, Vanuatu, with which there is no extradition treaty with India. The submissions made by learned counsel for the petitioner do not impress this Court to consider the same with the impugned order passed by the learned trial Court. 52. The Explanation (1) to Section 44 of the PMLA-2002 has also been considered in Vijay Madanlal Choudhary's case (supra) and in Para 368, it has been considered that: "368. ...........As a matter of fact, this insertion is only a clarificatory provision, as is evident from the opening statement of the provision which says that "for the removal of doubts, it is clarified that". None of the clauses inserted by this amendment travel beyond the principal provision contained in Clause (d). Clause (i) of the Explanation enunciates that the jurisdiction of the Special Court while dealing with the offence being tried under this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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