Bombay High Court
Sanjay Rajkumar Chhabriaa vs Directorate Of Enforcemant, Through ... on 21 December, 2023
Author: Prithviraj K. Chavan
Bench: Prithviraj K. Chavan
2023:BHC-AS:38744 22-4138-2023-IA==.doc
Uday S. Jagtap
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 4138 OF 2023
IN
CRIMINAL REVISION APPLICATION (ST.) NO. 20625 OF 2023
Sanjay Rajkumar Chhabriaa .. Applicant
Vs.
Directorate of Enforcement,
Through Asstt. Director & Anr. .. Respondents
.....
Mr. Vikram Nankani, Senior Counsel a/w Mr. Vibhav Krishna, Mr.
Tahir Prande, Mr. .Anmol Bartaria i/b Dadhichi S. Mhaispurkar for
the applicant
Ms. G.P. Mulekar, APP for the respondent - State
Mr. H.S. Venegavkar, Special Public Prosecutor a/w Mr. Aayush
Kedia for the respondent no.1 - E.D.
Mr. Kuldeep Singh, I.O. present in Court
.....
CORAM : PRITHVIRAJ K. CHAVAN, J.
CLOSED ON : 12th DECEMBER 2023
PRONOUNCED ON : 21st DECEMBER 2023
P.C. :-
1. This is an application seeking condonation of delay in
preferring a Revision Application, challenging an order dated 7 th
June 2022 passed by the Special Court under the Prevention of
Money Laundering Act (for short "PMLA"), by which the said
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Court permitted arrest and custody of the applicant from the
custody of the Special Court of C.B.I. to the Court under the PMLA
in connection with ECIR No. MBZO-I/03/2020 (Exh.F).
2. Heard Mr. Nankani, learned Senior Counsel for the applicant
and Mr. Venegavkar, Special Public Prosecutor for respondent no.1
- E.D.
3. Mr. Nankani, learned Senior Counsel extensively argued on
the merits of the impugned order without much emphasizing and
explaining as to why there was such a long and inordinate delay in
impugning an order of the PMLA Court.
4. I will, therefore, concentrate and focus only on the
application seeking condonation of delay as the law of Limitation is
indeed an important legislation, which is in furtherance of the
sound public policy to put a quietus to the dispute or grievances of
which resolution and redressal are not sought within the prescribed
time. Delay cannot be and should not be condoned at the sweet
will of the person who approaches the Court beyond prescribed
time limit.
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5. The existence of "sufficient cause" is a sine qua non for the
exercise of the discretion under Section 5 of the Limitation Act.
The party must satisfy the Court about the existence of "sufficient
cause" for the delay. This is imperative. When no cause is shown
or pleaded, it is impossible to construe a non-existence cause as a
'sufficient cause'. Under Section 5 of the Limitation Act, what
counts is not the length of delay but the sufficiency of cause.
6. This Court is vested with a discretionary power to be
exercised on the sound judicial principles and not in arbitrary, vague
and fanciful manner. The application seeking condonation of delay
will have to be considered keeping in mind the aforesaid basic
tenets of law.
7. At the outset, Mr. Nankani, learned Senior Counsel invited
my attention to the impugned order dated 7 th June 2022 passed by
the Special Court, PMLA, below Exh.236 inter alia contending that
the applicant had already preferred a petition under Article 32 of
the Constitution of India in the Supreme Court impugning the said
order. The Hon'ble Supreme Court is dealing with several petitions
in that regard, wherein, at the request of the learned Counsel
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appearing for the present applicant, the Supreme Court permitted
to withdraw Application Nos. 216977 & 216987 of 2023 as the
applicant herein sought permission to approach this Court. The
applications came to be dismissed as withdrawn. The order reads
thus :-
" Learned counsel seeks to withdraw the application
Nos. 216977 & 216987/2023 as he wishes to approach
the High Court. He may do so in accordance with law.
The applications are dismissed as withdrawn."
8. According to Mr. Nankani, the applicant was bona fide trying
to secure his personal liberty before the Hon'ble Supreme Court
from 12th August 2022 to 18th August 2023. He contends that the
powers of this Court under Section 397 of the Cr.P.C. are wide
enough so as to say that this Court can take suo motu cognizance by
giving a liberal approach while considering the delay caused in
preferring the Revision against the impugned order.
9. Mr. Nankani, learned Senior Counsel has placed reliance
upon a judgment in the case of Municipal Corporation of Delhi Vs.
Girdharilal Sapuru and Ors. (1981) SCC 758 in order to
substantiate his contention as regards condonation of delay. The
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ratio laid down by the Supreme Court can be carved out from para
5 of the judgment which is extracted below :-
"5. It, however, appears that the respondents
contended that the revision petition was barred by
limitation. Even this contention is founded on a very
technical ground that even though the revision petition
was filed very much in time the requisite power of
attorney of the learned Advocate on behalf of the
petitioner was not legally complete and when it was re-
submitted the limitation had expired. Without going
into the nicety of this too technical contention, we may
notice that Section 397 of the Code of Criminal
Procedure enables the High Court to exercise power of
revision suo motu and when the attention of the High
Court was drawn to a clear illegality the High Court
could not have rejected the petition as time barred
thereby perpetuating the illegality and miscarriage of
justice. The question whether a discharge order is
interlocutory or otherwise need not detain us because it
is settled by a decision of this Court that the discharge
order terminates the proceeding and, therefore it is
revisable under Section 397(1), Cr.PC and Section
397(1) in terms confers power of suo motu revision on
the High Court, and if the High Court exercises suo
motu revision power the same cannot be denied on the
ground that there is some limitation prescribed for the
exercise of the power because none such is prescribed. If
in such a situation the suo motu power is not exercised
what a glaring illegality goes unnoticed can be
demonstrably established by this case itself. We,
however, do not propose to say a single word on 'the
merits' of the cause because there should not be even a
whimper of prejudice to the accused who in view of this
judgment would have to face the trial before the learned
Magistrate."
10. I am afraid, this ratio would not be of any assistance to the
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applicant for the simple reason that the Hon'ble Supreme Court
discussed scope of Section 397 of the Cr.P.C. which enables the
High Court to exercise its powers of revision suo motu. A clear
illegality was brought to the notice of the High Court. In such
eventuality, the High Court could not have rejected the petition as
time barred thereby perpetuating the illegality resulting into
miscarriage of justice. It is held by the Supreme Court that the
question whether a discharge order is interlocutory or otherwise,
need not detain the Court as it is settled by the decision of the
Supreme Court that the discharge order terminates the proceeding
and, therefore, it is revisable under Section 397(1) of the Cr.P.C.
11. At first, this is not a revision of which suo motu cognizance
has been taken by this Court. It is apparent that after having made
several unsuccessful attempts before different forums, the applicant
has approached this Court challenging the order passed by the
Special Court. There is absolutely no illegality or miscarriage of
justice. Above all, the impugned order dated 7 th June 2022 being
an interlocutory order is not revisable in view of Section 397(2) of
the Cr.P.C. The judgment of the Supreme Court, therefore, can be
distinguished accordingly.
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12. The argument of Mr. Nankani, learned Senior Counsel that
applicant has been prosecuting multiple remedies available to him
and, therefore, delay has caused, cannot be termed to be a
'sufficient cause' to condone the delay.
13. Mr. Nankani, learned Senior Counsel has placed reliance
mainly on two recent decisions of the Supreme Court namely;
(i) Pankaj Bansal v. Union of India & Ors. 2023 SCC OnLine SC
1244 and (ii) V. Senthil Balaji v. State, 2023 SCC OnLine SC 934 .
Essentially, the ratio laid down by the Supreme Court in the
aforesaid decisions is concerning the merits of the case especially,
decision on Section 19 of the PMLA. The ratio laid down in the
said decisions need not be gone into for the reason that what is
required to be considered now is only an application seeking
condonation of delay. Nevertheless, I shall refer the judgments in
the later part of this order.
14. Per contra, Mr. Venegavkar, learned Special Public Prosecutor,
at the outset, contended that the application seeking condonation of
delay itself is so vague and casual, in the sense, there is absolutely
no whisper as regards 'sufficient cause' nor it has been stated as to
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how many days delay has occurred in preferring the Revision
Application. A bare look at the application reveals the said truth
that the application is not only silent as regards 'sufficient cause' but
also there is absolutely no whisper as to why there has been such a
long and inordinate delay.
15. Mr. Venegavkar, would argue that not only there is no
explanation about such a long and inordinate delay but, there is no
whisper even for a single days delay.
16. The third important aspect brought to the notice of this Court
is that a regular Bail Application has already been filed by the
applicant before the Special Court, in which the arguments are
heard and is reserved for order.
17. The fourth point raised by Mr. Venegavkar is that the first
remand of the applicant was on 7 th June 2022; the second remand
was on 14th June 2022 and the third remand was on 17 th June 2022.
If at all the applicant was so vigilant about his fundamental rights in
view of Article 21 of the Constitution of India, he should have
immediately brought the fact of his alleged illegal detention to the
notice of the Special Court as the applicant's case mainly revolves
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around the fact that the respondent had not strictly complied with
the provisions of Section 19 of the PMLA. Mr. Venegavkar,
therefore, would submit, as rightly so, that the application seeking
condonation of delay is not only without indicating any 'sufficient
cause' but is not even bona fide in the attending facts and
circumstances.
18. One more important and glaring aspect has been brought to
my notice by Mr. Venegavkar is that the applicant had moved an
application under Section 167(2) of the Cr.P.C. before a Single
Bench of this Court, which was rejected on 9 th October 2023. It
has not been challenged and has, therefore, attained finality. After
rejection of that application, the present Revision has been
preferred on 27th October 2023.
19. It is, thus, apparent that the applicant has been taking chances
before different forums. Since the applicant realized that he may
not get the relief, he approached this Court, that too after 416 days
by impugning the order passed by the Special Court on 7 th June
2022.
20. As already stated, merits of the impugned order are not
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required to be considered, yet, as Mr. Nankani has placed reliance
on the judgment in the case of Pankaj Bansal (supra) wherein the
Hon'ble Supreme Court discussed the scope of Section 19 of the
PMLA, it would be apposite to extract the relevant part, which
reads thus:-
"16. ..... It was pointed out that Section 167
Cr.P.C. is meant to give effect to Section 19 of the Act
of 2002 and, therefore, it is for the Magistrate to
satisfy himself of its due compliance by perusing the
order passed by the authority under Section 19(1) of
the Act of 2002 and only upon such satisfaction, the
Magistrate can consider the request for custody in
favour of an authority. To put it otherwise, per this
Court, the Magistrate is the appropriate authority
who has to be satisfied about the compliance with
safeguards as mandated under Section 19 of the Act of
2002. In conclusion, this Court summed up that any
non-compliance with the mandate of Section 19 of the
Act of 2002, would enure to the benefit of the person
arrested and the Court would have power to initiate
action under Section 62 of the Act of 2002, for such
non-compliance. Significantly, in this case, the
grounds of arrest were furnished in writing to the
arrested person by the authorized officer."
21. The crux is that if there is non-compliance of the mandate of
Section 19 of the PMLA, it would enure to the benefit of the person
arrested and the Court would have power to initiate action under
Section 62 of the PMLA of 2002, for such non-compliance.
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22. Similarly, Mr. Nankani, learned Senior Counsel has also
invited my attention to another judgment of the Supreme Court in
case of V. Senthil Balaji (supra) wherein the Supreme Court has
reiterated the scope of Section 19 of the PMLA. Paragraph 39 of
the judgment reads thus:-
"39. To effect an arrest, an officer authorised has to assess
and evaluate the materials in his possession. Through such
materials, he is expected to form a reason to believe that a
person has been guilty of an offence punishable under the
PMLA, 2002. Thereafter, he is at liberty to arrest, while
performing his mandatory duty of recording the reasons. The
said exercise has to be followed by way of an information
being served on the arrestee of the grounds of arrest. Any
non-compliance of the mandate of Section 19(1) of the
PMLA, 2002 would vitiate the very arrest itself. Under sub-
section (2), the Authorized Officer shall immediately, after the
arrest, forward a copy of the order as mandated under sub-
section (1) together with the materials in his custody, forming
the basis of his belief, to the Adjudicating Authority, in a
sealed envelope. Needless to state, compliance of sub-section
(2) is also a solemn function of the arresting authority which
brooks no exception."
23. Mr. Venegavkar, on the other hand, invited my attention to
para 39 of the judgment in the case of Pankaj Bansal (surpa). The
relevant part of para 39 is extracted below :-
"39. On the above analysis, 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
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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
decisions of the Delhi High Court in Moin Akhtar
Qureshi (supra) and the Bombay High Court in Chhagan
Chandrakant Bhujbal (supra), which hold to the contrary,
do not lay down the correct law."
24. Mr. Venegavkar, Special Public Prosecutor, has rightly invited
my attention to the word 'henceforth' i.e. 3rd October 2023 - the
date on which the judgment in the case of Pankaj Bansal (supra)
came to be delivered. It is, therefore, obvious that the applicant
cannot be heard to say that his arrest was illegal and, therefore, he
can seek bail in light of the fact that the first date of his remand was
7th June 2022.
25. Mr. Venegavkar, has also invited my attention to a recent
judgment of this Court dated 7 th November 2023 in the case of
Naresh Goyal Vs. Directorate of Enforcement & Ors. [Criminal
Writ Petition No. 3162 of 2023]. Para 8 of the said judgment reads
thus:-
"8. Mr. Venegavkar submitted that neither is the arrest of
the petitioner ex-facie illegal, nor are the remand orders
passed mechanically, routinely or without application of mind
and that the same is evident from the remand orders passed
by the Special Court. Mr. Venegavkar further submitted that
reliance placed on Pankaj Bansal (supra) is misconceived,
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inasmuch as, the words used in the said judgment in para 35
are that "henceforth" that a copy of such written grounds of
arrest is furnished to the arrested person, as a matter of
course and without exception". Emphasis was laid down on
the word 'henceforth' used in para 35 of the said judgment.
He submitted that the law holding the field before Pankaj
Bansal (supra), was that of Chaggan Bhujbal v. State of
Maharashtra (2016) SCC OnLine Bom 9938 and that the
petitioner was informed and served on the grounds of arrest.
Mr. Venegavkar produced before us, a copy of the grounds of
arrest served on the petitioner, duly signed by the petitioner.
As far as merits are concerned, Mr. Venegavkar submitted that
whether or not there was a stay on the predicate offence,
cannot be gone into, in view of the maintainability of the
petition itself, which seeks a writ of habeas corpus."
26. It can thus, be seen that application seeking condonation of
delay is without any 'sufficient cause' and is without any bona fide.
27. Consequently, the Application stands dismissed.
(PRITHVIRAJ K. CHAVAN, J.)
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