Gujarat High Court
Rakesh Manekchand Kothari vs Union Of India on 9 August, 2023
Bench: Umesh A. Trivedi
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4247 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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RAKESH MANEKCHAND KOTHARI
Versus
UNION OF INDIA & 2 other(s)
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Appearance:
MR. VIKRAM CHAUDHARY, SR. ADVOCATE assisted by
MR. CHETAN K PANDYA(1973) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MR. DEVANG VYAS, ASG assisted by
MR. SIDDHARTH H.DAVE (5306) AND
MR. KSHITIJ M. AMIN(7572) for the Respondent(s) No. 1
MS. CHETNA M. SHAH, APP for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This petition is filed by the petitioner praying for following
reliefs:-
" 12. (a) for issuance of a Writ of Habeas Corpus or any other
appropriate writ or order in the nature of Habeas
Corpus for directing forthwith release of the
Petitioner herein with consequential reliefs, from
custody pursuant to his illegal arrest without
warrant and continued illegal detention in PMLA
Case No. 4/2014 filed in ECIR/01/SRT/2014 dated
17.04.2014 pending before the Principal District &
Sessions Judge, Ahmedabad (Rural), the designated
Special Court under Prevention of Money
Laundering Act, 2002 at Ahmedabad;
(b) At the interim / ad-interim stage, pending final
disposal of the instant writ petition, the Petitioner
may please be released in PMLA Case No. 4/2014
filed in ECIR/01/SRT/2014 dated 17.04.2014
pending before the Principal District & Sessions
Judge, Ahmedabad (Rural), the designated Special
Court under Prevention of Money Laundering Act,
2002 at Ahmedabad on such terms and conditions
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as may deem fit and proper in the interest of
justice,
(c) dispense with an affidavit in support of the Petition
since the Petitioner is in custody;
(d) and/or pass any other or further orders which Your
Lordships may deem fit and proper in the interest of
justice."
2. When the matter came up for hearing before this Court
on 14.07.2015, a statement was made on behalf of the
petitioner that after the amendment of the year 2005 in the
Prevention of Money Laundering Act, 2002 (hereinafter
referred to as "the Act"), the offence for which the petitioner
has been involved is non-cognizable and petitioner has been
taken into custody in violation of provisions contained in "the
Act" as well as mandatory provision of Section 155 read with
Section 4(2) of the Code of Criminal Procedure, 1973
(hereinafter referred to as "the Code"), an investigation has
started without the orders of the Magistrate and petitioner was
arrested without warrants. Considering the said statement, as
coming out from the order, notice of Rule came to be issued.
2.1 Thereafter, vide order dated 03.08.2015, after hearing
the appearing parties, and considering the submissions made,
this Court issued Rule in the petition and petitioner was
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ordered to be released till final decision of this petition subject
to his furnishing a personal bond in the sum of Rs. 50,000/-
with one surety of the like amount to the satisfaction of the
special Court and on observing other general conditions as well
as condition that he will not leave country without prior
permission of the trial Court.
2.2 Prior to summer break, this matter was on board for
hearing dated 24.04.2023 and it came to be adjourned on
25.04.2023 in view of the leave-note filed by the learned
advocate for the petitioner.
2.3 On 25.04.2023, a request was made on behalf of learned
advocate for the petitioner that the learned Counsel appearing
in this matter all throughout was busy in other Court and he
would be available on Friday i.e. on 28.04.2023 and if the
matter spills over, it can be heard on Saturday i.e. 29.04.2023,
being a Court working Saturday as per the calendar. Therefore,
matter was adjourned to 28.04.2023. However, on that day,
time was sought for to place on record required documents for
the purpose of hearing of this petition, which would be
submitted with the Registry on or before 16.06.2023 i.e. after
summer break.
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2.4 On 20.06.2023, again time was sought for by the learned
advocate for the petitioner, which was granted and matter was
adjourned to 27.06.2023. Since then, hearing started from
27.06.2023, though intermittently accommodating learned
advocates for the appearing parties and on 04.07.2023,
learned advocate for the petitioner submitted that the
petitioner would like to give written submissions within two
days hereof i.e. within two days from 04.07.2023 and the
hearing be treated as concluded. Thereafter, matter was
adjourned to 06.07.2023. Since matter was adjourned to
06.07.2023, written submissions were supplied. In the changed
scenario, matter was adjourned to 18.07.2023. As recorded in
an order dated 18.07.2023, in the meanwhile, petitioner filed
petition before the Supreme Court under Article 139A of the
Constitution of India praying transfer of this petition to the
Supreme Court, came to be withdrawn. Therefore, it was
recorded that the hearing was concluded and the matter is
kept for judgment.
2.5 As such, this matter has a very chequered history, as
coming out from the record of this case. The very petitioner
filed Special Criminal Application (S.Cr.A.) No. 4496 of 2014,
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praying following reliefs:-
"19. a) To strike down Section 45 of the Prevention of
Money-Laundering Act, 2002 (hereinafter referred
to as 'PMLA') [as inserted / substituted by
Amendment Act 2005 (20 of 2005), dt. 21-5-2005],
as the said provision does not bear any reasonable
and rational nexus with variety of Scheduled
offences mentioned in the Schedule under the Act
which may even be non-cognizable, bailable and on
much lighter pedestal, for being unreasonable and
ultra vires, and consequently unconstitutional,
illegal, arbitrary, discriminatory, and thus being
violative of Articles 14, 19 and 21 of the
Constitution of India, and this Hon'ble Court may
read down, lay down, expound, interpret and
deliberate upon the scope and perspective of
Section 45 of PMLA so as to harmonize the same in
juxtaposition with various scheduled offences
(under amended Part A of the Schedule),
b) To read down, expound, deliberate and interpret
the scope and perspective of Section 19 of PMLA in
light of section 49(3) read with Rules notified by
GSR 446(E) dated 1.7.2005, in consonance and
harmony with settled constitutional mandate of
Articles 14, 21 and 22 of Constitution of India as
also in the context of various provisions under the
Code of Criminal Procedure, 1973, as amended from
to time and the Guidelines laid down by the Hon'ble
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Apex Court in D.K. Basu vs State of West Bengal,
1997 (1) SCC 416,
c) For issuance of an appropriate writ of quo warranto,
calling upon Respondent No.3, who being an
Assistant Director, Enforcement Directorate,
appointed under Foreign Exchange Management
Act, 1999, can under section 54 of PMLA only assist
any officer investigating under PMLA, to show cause
as to how and under what authority has he
exercised the power of arrest under Section 19 of
PMLA, while effecting arrest of the Petitioner on
01.09.2014 in ECIR/01/SRT/2014, without producing
till date, despite specific objection by the Petitioner-
i) any authorization conferring upon him by
way of any notification or order issued by the
Central Government in terms of Section 19
and Section 49 of PMLA, 2002, read with
Rules notified by GSR 446(E), dt.1-7-2005,
authorizing him to be an "Arresting Officer"
and to exercise power to arrest under section
19,
ii) any notification issued by Central
Government for his appointment as Assistant
Director under section 49 of PMLA,
iii) any records to show compliance of Rules
notified by GSR 446(E) dated 1.7.2005,
iv) and any Criminal Proceedings against the
Petitioner in the alleged Scheduled offence
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showing the Petitioner as an accused person;
and
d) For issuance of an appropriate writ of habeas
corpus, or order or direction under Article 226 of the
Constitution of India, directing forthwith release of
the Petitioner from custody, by setting aside the
impugned Arrest Order dated 1.9.2014 and the
consequent remand proceedings, as the arrest of
the Petitioner is manifestly illegal, without
jurisdiction, null and void ab initio, for clear violation
of-
i) The directives of the Hon'ble Apex Court in
D.K. Basu vs State of West Bengal, 1997 (1)
SCC 416 [more particularly those prescribed
in sub-para (2), (9) and (10) of Para 35
thereof],
ii) The provisions of PMLA including amongst
others of Section 19 (1) of PMLA, which
mandatorily prescribe the arrest to be made
on the basis of such "material in possession",
on the basis of which there exists "reason to
believe" that person is "guilty" of an offence
under the PMLA; which shall be "recorded in
writing"; and pursuant to arrest to inform him
of the 'Grounds' for such arrest,
iii) Rules notified by Central Government vide
GSR 446(E), dt.1-7-2005,
iv) Notification GSR 441(E) dated 1.7.2005
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issued by the Central Government appointing
Director to exercise the "exclusive" power
conferred under section 19 of PMLA,
v) Article 14, 21 and 22 of the Constitution of
India
e) At the interim / ad-interim stage-
i) The proceedings under PMLA against the
Petitioner may please be stayed,
ii) The Petitioner may please be released on
regular bail in the above case in ECIR/01/SRT/
2014,
f) Dispense with filing of affidavit in support to this
Petition as the Petitioner is in judicial custody;
g) For such other or further order/s in the peculiar
facts of the case."
2.6 The said petition came to be presented on 15.10.2014 &
it came to be heard and finally disposed of by this Court vide
order dated 16.01.2015 by a common judgment and order
passed in S.Cr.A. No. 4496 of 2014 and S.Cr.A. No. 4672 of
2014, rejecting the challenge of the petitioner for the prayers,
as mentioned hereinabove.
2.7 Criminal Misc. Application (For Review) No. 3715 of 2015
in S.Cr.A. No. 4496 of 2014 came to be filed by the petitioner
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praying for review of the decision rendered by the Court, which
was not pressed as the petitioner was contemplating to
challenge the common CAV Judgment dated 16.01.2015
rendered in this petition before the Supreme Court by filing
Special Leave Petition (SLP), however, on submission being
made, it was made clear that common CAV Judgment dated
16.01.2015 in S.Cr.A. No. 4496 of 2014 shall have no bearing
in the pending bail application or any other applications
pending before the Court of law or any other forum/authority.
2.8 To make the record complete, it would be profitable to
state that the petitioner preferred S.L.P. (Criminal), which was
filed in delay and perhaps there was Criminal Misc. Petition No.
7277 of 2015 praying for condonation of delay in the said
S.L.P.. At the same time, petitioner has also preferred
independent Writ Petition (Criminal) No. 61 of 2015 and both
were heard together and vide order dated 07.07.2015 passed
by the Supreme Court, petitioner withdrew not only the S.L.P.
preferred against an order passed by this Court in S.Cr.A. No.
4496 of 2014 but also the independent Writ Petition filed, as
aforesaid, also came to be withdrawn. However, it was clarified
that withdrawal of the present Writ Petition i.e. Writ Petition
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(Criminal) No. 61 of 2015, will not come in the way of any other
Writ Petition that is already pending or that may be filed by the
petitioner.
2.9 Thus, challenge to the order passed by this Court in a
writ of habeas corpus filed on earlier occasion vide S.Cr.A. No.
4496 of 2014 as also independent Writ Petition (Criminal) No.
61 of 2015 challenging constitutional validity of provisions of
"the Act" came to be withdrawn, whereby judgment and order
passed by this Court in earlier Writ Petition i.e. Special Criminal
Application No. 4496 of 2014, came to be confirmed.
2.10 It would be pertinent to note that, vide arrest order
dated 01.09.2014, Assistant Director (Camp Ahmedabad) of
Enforcement Directorate, Department of Revenue, effected
arrest of the petitioner having reason to believe that he has
been guilty of an offence punishable under Section 4 read with
Section 3 of "the Act", while exercising powers conferred upon
him under sub-section (1) of Section 19 of "the Act", petitioner
came to be arrested by them. Vide Criminal Misc. Application
No. 1293 of 2014 filed before the designated Judge under the
Prevention of Money Laundering Act, 2002, and Principal
District Judge, Ahmedabad (Rural), the petitioner opposed any
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further remand in connection with ECIR/01/SRT/2014 and
sought for bail under Section 439 of "the Code", which came to
be rejected by an order dated 08.10.2014. First supplementary
complaint to the Complaint No. 3 of 2014 in the P.M.L.A. Case
came to be filed against present petitioner as Accused No. 1
and 9 other co-accused, as coming out from the petition, on
29.10.2014. The designated Judge under P.M.L.A. Act,
Ahmedabad (Rural) at Mirzapur, Gujarat, on the very same
day, took cognizance of the same and complaint was ordered
to be registered and numbered.
2.11 Since the application for bail and opposition of further
remand, if any asked for, filed by the petitioner vide Cr.M.A.
No. 1293 of 2014 before designated Court came to be rejected,
petitioner preferred Cr.M.A. (For Regular Bail) No. 3637 of
2015, which came to be rejected by this Court vide order dated
31.03.2015.
2.12 The petitioner thereafter preferred S.L.P. (Criminal) No.
3978-3979 of 2015 challenging the order passed by this Court
refusing bail in Cr.M.A. No. 3637 of 2015, which came to be
dismissed by the Supreme Court vide order dated 12.05.2015.
However, liberty was granted to the petitioner, if he so desires,
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to make an appropriate application/petition, as envisaged
under the provisions of "the Code", after 6 months thereof.
2.13 It appears that, instead of applying for bail after 6
months from the date of the order passed by the Supreme
Court, he appears to have filed present petition on 13.07.2015,
praying for issuance of writ of habeas corpus directing the
forthwith release of the petitioner, with consequential release
from custody, pursuant to his illegal arrest without warrant and
continued illegal detention in P.M.L.A. Case No. 4 of 2014.
3. We have heard Mr. Vikram Chaudhary, Senior Advocate,
learned Counsel, assisted by Mr. Chetan K. Pandya, learned
advocate for the petitioner, Mr. Devang Vyas, Senior Advocate,
learned Additional Solicitor General of India with Mr. Siddharth
Dave, learned advocate, with Mr. Kshitij Amin, learned
advocate for respondent No. 1 as also Ms. Chetna M. Shah,
learned APP for respondent No.3 - State.
3.1 Mr. Vikram Chaudhary, Senior, learned Counsel,
submitted that maintainability of the present writ petition and
the non-applicability of the principles of res-judicata or
constructive res-judicata as well as grant of bail to the
petitioner and the only eventuality to cancel or withdraw the
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same having been limited to be agitated in the event of misuse
of liberty by the petitioner, stands conclusively concluded by
this Court vide order dated 03.08.2015, and therefore, it is not
open to challenge.
3.2 It is further submitted that the order passed by this
Court dated 03.08.2015 was challenged by one Ramnath
Sharma permitting him to file Special Leave to Appeal, which
came to be dismissed by the Supreme Court vide order dated
21.08.2015 in S.L.A. (Cri.) CRLMP No. 13558 of 2015, and
liberty was granted to him to make appropriate application
before the Court below for cancellation of bail, if the
respondent misuses the bail granted to him. Furthermore, as
submitted by the learned Counsel, Union Of India had also
challenged order dated 03.08.2015 by way of S.L.P. (Criminal)
No. 9727 of 2015, which came to be dismissed vide order
dated 23.11.2015. Thus, according to the submission of
learned Counsel, detailed order dated 03.08.2015 considering
the challenge to the maintainability of the present petition on
the ground of res-judicata or constructive res-judicata is put to
rest by the Supreme Court as also an order of bail, giving right
to the petitioner therein to move the competent Court for
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cancellation of bail, if respondent - accused therein misuses
the bail granted to him. Therefore, it is the submission of
learned Counsel for the petitioner that there remains nothing
to be further done in this case except to continue the bail
granted to the petitioner.
3.3 It is further submitted that petitioner is being illegally
arrested without warrant and continued illegal detention in
P.M.L.A. Case No. 4 of 2014 filed in ECIR/01/SRT/2014 dated
17.04.2014 pending before the Special Court for P.M.L.A. at
Ahmedabad, wherein on being summoned, he had appeared
on 01.09.2014 before Enforcement Directorate and was
illegally arrested without warrant in a non-cognizable offence
under "the Act".
3.4 It is further submitted that on finding prima-facie merit in
the present petition, while issuing Rule, the petitioner was
enlarged from physical custody by granting bail while keeping
the petition pending and granting liberty to the parties to move
for early hearing after decision in reference made in the case
of Tofan Singh v. State of Tamil Nadu, reported in (2013)
16 SCC 31. Therefore, it is submitted that the petitioner
remains in constructive custody by virtue of his bail bonds.
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3.5 It is further submitted that the preliminary issues that
arises for consideration is, "whether after lapse of 8 ½ years
from grant of bail in this petition, by continuing the bail, the
issues raised can be left open to be dealt with later before trial
Court, particularly in light of the peculiar fact that scope of
Sections 3 & 45 of "the Act", the issues of necessity to comply
with the provisions of Chapter XII of "the Code" and the issue
of admissibility of statements under Section 50 of "the Act" are
presently pending in review petitions and various writ petitions
before the Honourable Supreme Court ?"
3.6 It is further submitted that it is undisputed position that,
now the scope of Sections 3 & 45 of "the Act", the issues of
necessity to comply with provisions of Chapter XII of "the
Code" and the issue of admissibility of statements under
Section 50 of "the Act" are pending before the Supreme Court.
Respondents have therefore, fairly accepted that the bail of
the petitioner can be continued and have not objected to the
proposal that the issues raised in this habeas corpus petition
can be left open to be dealt with after the judgment of the
larger Bench of the Supreme Court in the said batch of matters
presently being heard.
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3.7 It is further submitted that the issues raised are to be
decided in consonance with the paradigm shift from the era of
"procedure established by law" to this era of "substantive due
process", more so as the earlier judgments did not have
benefit of expansion of the scope of Articles 14, 19, 20 & 21
recognised by the Constitution Bench judgments in Maneka
Gandhi v. Union Of India, reported in (1978) 1 SCC 248,
Ramanlal Bhogilal Shah, reported in (1973) 1 SCC 696,
Mohd. Arif v. Supreme Court of India, reported in (2014)
9 SCC 737 and Justice K.T. Puttaswamy vs Union Of
India, reported in (2017) 10 SCC. Further, now there are
judgments of, a Constitution Bench in Lalita Kumari v. State
of U.P., reported in 2014 (2) SCC 1, a three-Judge Bench of
Hon'ble Supreme Court in Om Prakash v. Union of India,
reported in (2011) 14 SCC 1 and also a judgment in Ashok
Munilal Jain vs. Assistant Director, Directorate of
Enforcement, reported in (2018) 16 SCC 158.
3.8 It is further submitted that following question of law are
to be adjudicated:-
"A. Whether the words 'police officer', 'officer in charge of
police station' etc. used in CrPC would be suitably read as
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'investigating officer' for investigations under Special Acts
such as PMLA?
B. Whether alleged offence under PMLA for which the
petitioner was arrested on 01.09.2014, was 'cognizable' or
'non-cognizable'?
C. Consequently, if the offence was 'non-cognizable', whether
petitioner's arrest on 01.09.2014 without a warrant, and
continuation of custody thereafter was illegal on the vice
of Articles 14 and 21 of the Constitution of India, in view of
non-compliance with Sections 155, 172 & 4(2) of CrPC
read with Section 65 of PMLA? And, if the offence was
'cognizable', whether petitioner's arrest and continuation
of custody thereafter, was illegal on the vice of Articles 14
and 21 of the Constitution of India, in view of non-
compliance with Sections 154, 157, 172 & 4(2) of CrPC
read with Section 65 of PMLA?
D. Whether the words "police officer" in Section 25 of
Evidence Act would be suitably read as an 'investigating
officer' investigating offence under Special Acts such as
PMLA, and the word "accused" used in Section 25 of
Evidence Act and Article 20(3) of Constitution would
include a person arrested on accusation of offence of
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PMLA? Consequently, whether statements of an accused
recorded under Section 50 of PMLA would be subject to
Section 25 of Evidence Act and Article 20(3) of the
Constitution of India?
E. Whether arrest under Section 19 of PMLA and continued
custody is even otherwise illegal for having no material in
possession to form the reasonable belief qua the petitioner
having knowingly committed an offence under Section 3 of
PMLA?"
3.9 It is further submitted that prima-facie findings recorded
by Delhi High Court in the case of Rajbhushan Omprakash
Dixit v. Union Of India & Anr. dated 19.02.2018 in W.P.
(CRL) 363/2018 & in CrL.M.A. 215/2018, more particularly
paras 24 to 41 and 54 to 55 be treated as submission of the
petitioner and as part and parcel of the instant submissions.
3.10 It is further submitted that the remand to custody was
wholly mechanical and remand orders were not such that
would cure constitutional infirmity. For making the said
submission, a decision in the matter of Madhu Limaye And
Ors., reported in (1969) 1 SCC 292, Gautam Navlakha v.
National Investigation Agency, reported in 2021 SSC
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OnLine SC 382, A.R. Antulay v. Ramdas Sriniwas Nayak
And Another, reported in 1984 (2) SCC 500, were relied on
to submit that Code of Criminal Procedure is the parent statute
which provides for investigation, inquiring into and trial of
cases by criminal Courts of various designations. It is
submitted that the same ratio was laid in Vishwa Mitter v. O.
P. Poddar And Others, reported in (1983) 4 SCC 190. In
the context of Trade & Merchandise Marks Act in JIK
Industries Ltd. v. A.V. Jumani, reported in (2012) 3 SCC
255, paras 69 to 73, in the context of Negotiable Instruments
Act, in Mirza Iqbal Hussan v. State of U.P., reported in
(1982) 3 SCC 516, para 2 therein, in the context of
Prevention of Corruption Act and in Union of India v.
Thamisharasi, reported in (1995) 4 SCC 190, in paras 5, 6 &
14, in context of NDPS Act.
3.11 It is vehemently submitted that arrest of the petitioner
without warrant in non-cognizable offence under "the Act" was
in contravention of Section 155 of "the Code" as also in
contravention of decision of the Supreme Court in the case of
Om Prakash (Supra) & State of Haryana v. Bhajan Lal,
reported in 1992 Suppl. (1) SCC 335 and in violation of
Articles 14 & 21 of the Constitution of India.
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3.12 In support of his aforesaid submission, he relied on a
decision in the case of Tilak Nagar Industries Ltd.& Ors v.
State Of A.P. & Anr, reported in (2011) 15 SCC 571, more
particularly para 11 thereof. The decision in the case of
Keshav Lal Thakur v. State of Bihar, reported in (1996)
11 SCC 557 was again relied on in support of submission that
non-compliance of Section 155 of "the Code" in a non-
cognizable offence, entire criminal proceedings can be
quashed.
Relying on the aforesaid decisions, the petitioner
submitted that since the procedure prescribed under Section
155 of "the Code" is not followed in investigation, in a non-
cognizable offence under "the Act", his arrest and continued
custody without following Section 155 of "the Code" are illegal
and vitiated in the eyes of the law, warranting forthwith
release of the petitioner from constructive custody, with
consequential reliefs.
3.13 Relying on a decision in the case of Om Prakash
(Supra), it is submitted that Central Excise & Custom Officers
are at par with a Police Office for complying with the
requirements of Section 155 of "the Code", holding that in the
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case of 1994 Act, in view of Section 9A, all offences come
under that Act, have been made non-cognizable and having
regard to the provisions of Section 155, neither could any
investigation be commenced in such cases nor could a person
be arrested in respect of such offence without a warrant for
such arrest.
3.14 It is further submitted that Review Petition No. 97-98 of
2013 filed by the Union Of India specifically challenging the
dicta of Om Prakash (Supra) dismissed by three-Judge Bench
of Supreme Court vide order dated 13.08.2013, wherein review
petition records the question raised in the writ petition as
including "(ii) Whether an Excise Officer can arrest a person
suspected of commission of evading Excise Duty without a
warrant from a Magistrate." The order passed by another
three-Judge Bench and two-Judge Bench of the Supreme Court
in different proceedings, granting liberty to respective
petitioners to raise issue of non-compliance of Section 155 of
"the Code" before any other appropriate Court while observing
that, in Om Prakash (Supra), provisions of Section 155 of
"the Code" were considered in detail, it is submitted that the
decision in the case of Om Prakash (Supra) has to be
followed in the present case also.
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3.15 In the non-cognizable regime, the emphasis in the
Constitution Benches in Romesh Chandra Mehta v. State
Of West Bengal, reported in 1970 SC 940 & Illias v.
Collector Of Customs, Madras reported in AIR 1970 SC
1065, was on lack of power to submit a final report under
Section 173 of "the Code" for holding that, Customs Officer
was not a Police Officer within the meaning of Section 25 of the
Evidence Act and the statements made before him by a
person, who is arrested or against whom an inquiry is made,
are not covered by Section 25 of the Evidence Act. The
observations of the Constitution Benches were not in context
of application of the provisions of "the Code".
3.16 Relying on a decision in the case of S.I.O. v. M.K.S.
Abu Bucker, reported in 1990 Cri.L.J. 704 of Madras High
Court, it is submitted that reading of Section 4(2) of "the Code"
renders the provisions of "the Code" applicable in the field not
covered by the provisions of the Customs Act. Therefore, it is
submitted that in relation to the matters of investigation,
inquiry, trial or dealing otherwise, not covered by the
provisions of the Customs Act, the parallel provisions of "the
Code" necessarily will have to be applied. It is submitted that,
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such operation of Section 4 of "the Code" cannot be just
rejected merely because "the Code" uses expressions which
are compatible with offences under the Indian Penal Code and
investigation being conducted by a Police Officer.
3.17 It is further submitted that while holding that the
Customs Officers are not a Police Officer for the purpose of
Section 25 of the Indian Evidence Act and a person making a
statement to a Customs Officer under Sections 107 and 108 of
the Customs Act can be said to be a person "accused of any
offence" within the meaning of Article 20(3) of the Constitution
of India and the Customs Officer acting under the Customs Act
was not a Police Officer for the purpose of Section 25 of the
Indian Evidence Act as held in Illias v. Collector (Supra) and
Romesh Chandra Mehta (Supra).
In both these cases, according to the submission of
learned Counsel for the petitioner, it is nowhere mentioned
that the provisions of Chapter XII of "the Code" and provisions
of Section 167(2) of "the Code" would not be available when
the person is detained under the Customs Act and produced
before the Magistrate by the Officer appointed under the said
Act.
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3.18 Relying on a decision in the case of M.K. Ayoob v.
Superintendent, CIU, 1984 CRI. L.J. 949 (Kerala HC), it is
submitted that under sub-section (2) of Section 4 of "the
Code", all offences under any other law (i.e. law other than the
Penal Code) shall be investigated, inquired into, tried and
otherwise dealt with according to the same provisions (i.e. the
provisions of "the Code"), but subject to any enactment for the
time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with
such offences, it would mean that in the absence of any
provisions in "the Act", touching any such matter as
mentioned in sub-section (2) of Section 4 of "the Code", the
provisions of "the Code" would apply.
3.19 It is further submitted that the applicability of sub-
section (2) of Section 4 of "the Code", in the context of non-
cognizable offences of FERA and Customs Act, 1962 was again
in issue and decided in affirmative by Supreme Court in the
case of Directorate of Enforcement v. Deepak Mahajan,
reported in (1994) 3 SCC 440, after considering and applying
some of the precedents, it is submitted that in paras 91 and 96
thereof, various earlier judgments of Constitution Benches,
including State of Bombay v. Kathi Kalu Oghad, reported
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in 1962 (3) SCR 10, Romesh Chandra Mehta (Supra),
Veera Ibrahim v. State of Maharashtra, reported in 1976
(2) SCC 302, Illias v. Collector (Supra) and Ramanlal
Bhogilal Shah (Supra), of all which were distinguished as
none of them were related to interpretation of these terms for
the purpose of provisions of Section 167 of Chapter XII of "the
Code". In para 106 thereof, according to the submission of
learned Counsel for the petitioner, Supreme Court approved
the view taken by Madras High Court in S.I.O. v. M.K.S. Abu
Bucker (Supra). In short, the submission is that for the
purpose of investigation and trial, provisions of "the Code"
along with Chapter XII cannot be ignored which requires
permission of the Court concerned to effect the arrest of the
accused in a non-cognizable offence, to take up the
investigation into the said non-cognizable offence.
3.20 It is further submitted that the contention of the
respondent that Chapter XII of "the Code" is excluded, runs
contrary to the decision of the Supreme Court in the case of
Deepak Mahajan (Supra), as investigation was for seeking
custody under Section 167(2) of "the Code" as also in Chapter
XII of "the Code".
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It is submitted that para 91 of decision of Supreme Court
in the case of Deepak Mahajan (Supra) clarifies that the
judgments of the Constitution Benches in regard to
admissibility of statements in light of Article 20(3) of the
Constitution and Section 25 of the Evidence Act, were not
applicable for deciding the issue of applicability of the
provisions of "the Code" in light of sub-section (2) of Section 4
of "the Code".
3.21 It is further submitted that even after the alleged
offence is construed as 'cognizable', the right under Article 21
of the Constitution of India is protected, if the FIR is registered
first and then the investigation is conducted in accordance
with the provisions of law as held by the Constitution Bench of
the Supreme Court in the case of Lalita Kumari (Supra).
Therefore, recording of Information Report by the E.D. officer in
his office itself and sending a copy thereof forthwith to the
jurisdictional Magistrate is mandatory on receipt of an
information of a commission of cognizable offence under "the
Act", by application of Sections 154 and 157 of "the Code".
3.22 A decision in the case of Gorav Kathuria v. Union Of
India & Ors., reported in 2016 SCC OnLine Punjab &
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Haryana 3428 is relied on by the learned Counsel for the
petitioner to contend that as held in the said decision, by
application of sub-section (2) of Section 4 of "the Code" and in
view of the binding precedents referred to therein, the words
'Police Officer' appearing in definitions would be read as
'officer authorized under the Customs Act, 1962'. Thus, in a
'cognizable offence' under the Customs Act, 1962, the Custom
Officer would have power to arrest under Section 104(1)
without a warrant. He would comply with provisions of Sections
154 to 157 by recording the information and sending forthwith
a copy of the report under Section 157 to the jurisdictional
Magistrate. But in a 'non-cognizable' offence under "the Act",
he would have to obtain from jurisdiction Magistrate,
permission to investigate and a warrant of arrest under Section
104(1) of "the Act" as held by the Supreme Court in the case
of Om Prakash (Supra).
3.23 It is further submitted that the aforesaid judgment of
Gorav Kathuria (Supra) was challenged before the Supreme
Court by Criminal Appeal No. 737 of 2016 and Supreme Court
dismissed the said appeal while observing that the judgment
impugned was correct, vide order dated 12.08.2016.
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3.24 Relying on a decision of the Supreme Court on the
Doctrine of Merger, it is submitted that the judgment and order
passed by the Punjab & Haryana High Court in the case of
Gorav Kathuria (Supra) is merged with that of the Supreme
Court. It is also submitted that the Union Of India did not even
challenge the said judgment of Punjab & Haryana High Court in
Gorav Kathuria (Supra).
3.25 It is also contended that an arrested person shall be
taken to a Magistrate, obviously for seeking his remand under
Section 167 of "the Code". The said Section 167 of "the Code"
also uses the words 'Officer in charge of police station' and
'Police custody'. As held by different Courts, including Supreme
Court, as referred to hereinabove, these terms in Section 167
of "the Code" would be suitably read to refer Custom Officers.
Thus, it is submitted that, when the FERA/Customs Act
offences were only "non-cognizable", by relying on sub-section
(2) of Section 4 of "the Code", it was held that Section 167 of
"the Code" would be applicable, notwithstanding use of words
'Officer in charge of police station' and 'Police custody', after
considering the earlier judgments which held that Customs
officers are not Police officers for the purpose of Evidence Act.
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A decision in the case of Ashok Munilal Jain (Supra), is
relied on to contend that provisions of sub-section (2) of
Section 4 of "the Code" and the procedure contained therein
applies in respect of special statutes as well unless the
applicability of the provisions is expressly barred.
3.26 It is further submitted that Sections 44 to 46 of "the
Act" specifically incorporate the provisions of "the Code" to the
trials under "the Act". Thus, it is submitted, not only there is no
provision in "the Act" excluding the applicability of "the Code",
on the contrary, provisions of "the Code" are incorporated by
specific inclusion. Even Section 65 of "the Act" itself settles the
controversy beyond any doubt in this behalf.
3.27 It is submitted that in "the Act", there is no provision
overriding Section 155 of "the Code", as in the case of Section
6 of the Railways Property (Unlawful Possession) Act, 1966
(hereinafter referred to as "RPUP Act") for investigating and
arresting any accused of non-cognizable offence without an
order and without any warrant from Magistrate. The "RPUP
Act" was enacted investing the powers of investigation and
prosecution of offences relating to Railway property in the
Railway Protection Force in the same manner as in the Excise
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and Customs. Although Section 5 made the offence under the
said Act a 'non-cognizable' offence, yet while enacting the said
Act, there was a specific departure in Section 6 to exclude
application of Sections 155(2) and 155(3) of "the Code".
Therefore, it is submitted that the specific provisions of Section
6 of the "RPUP Act" are inconsistent with Section 155 of
general provisions of "the Code" in view of sub-section (2) of
Section 4 of "the Code" read with Section 5 of "the Code". The
said provisions o the general provisions of Section 155 of "the
Code" in that Act. As a sequitur, as submitted by the learned
Counsel, since no such provision excluding the application of
Sections 155(2) and 155(3) of "the Code" exists in "the Act"
and thus, the same shall apply in the investigations under "the
Act", if the offence thereunder is non-cognizable. If the offence
under "the Act" is construed to be cognizable, the other
provisions falling in Chapter XII of "the Code", including
Sections 154, 157, 167 and 172 of "the Code" would come into
play. Therefore, it is submitted that, compliance with the
mandatory provisions of Chapter XII of "the Code" would not
have caused prejudice to Enforcement Directorate, on the
other hand, non-compliance therewith caused serious
prejudice to the petitioner - accused and violated his
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fundamental rights guaranteed under Article 21 of the
Constitution of India.
The investigation into a cognizable offence is to be
commenced by I.O. by following Sections 154 / 157 of "the
Code", and investigation and arrest into non-cognizable
offence is to be conducted by him after obtaining order under
Section 155(2) and warrant under Section 155(3) of "the
Code".
3.28 It is further submitted that, a person arrested can also
be an accused in the Scheduled offence. Section 19 of "the
Act" requires for a valid arrest - "reason to believe" - of
knowingly committing an offence of laundering, (as defined
under Section 3 in relation to "proceeds of crime" defined in
Section 2(1)(u) derived from "Scheduled offence") punishable
under Section 4, on the basis of material in possession. Such
accusation, which is to be informed to the arrested person,
would definitely have potential to subject him to criminal
charge/prosecution. Therefore, the person apprehended on
accusation of commission of an offence under "the Act" shall
be an accused for the purpose of Article 20(3) of the
Constitution of India, as per the ratio laid down in the
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Constitution Bench decision in the case of Ramanlal Bhogilal
Shah (Supra).
3.29 It is further submitted that entire edifice of the case
alleged against the petitioner is only on the strength of
statements obtained purportedly under Section 50 of "the
Act". According to the petitioner, such statements even under
Section 50 of "the Act" are not admissible piece of evidence.
3.30 It is further submitted that "the Act" is a unique
legislation. The scope of "the Act" had come under the scanner
of the Supreme Court in the case of Nikesh Tarachand Shah
v. Union Of India, reported in (2018) 11 SCC 1, referring
para 11 thereof, it is submitted that an important ingredient of
offence under "the Act" is that these persons must be
knowingly or actually involved in any process or activity
connected with proceeds of crime and "proceeds of crime" is
defined under "the Act" by Section 2(1)(u) thereof, to mean
any property derived or obtained directly or indirectly, by any
person as a result of criminal activity relating to a Scheduled
offence (which is referred to in judgment as the predicate
offence). Thus, whosoever is involved, as aforesaid, in a
process or activity connected with "proceeds of crime" as
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defined, which would include concealing, possessing, acquiring
or using such property, would be guilty of the offence, provided
such persons also project or claim such property as untainted
property. Section 3 of "the Act", therefore, contains all the
aforesaid ingredients and before someone can be adjudged as
guilty under the said provision, the said person must not only
be involved in such process or activity in such proceeds of
crime but must also project or claim it as untainted property.
3.31 It is further submitted that after arresting the petitioner
and obtaining his custody, self-incriminating confessions were
obtained from the petitioner by coercive methods. In
Enforcement custody, the petitioner was again coerced,
pressurized and threatened with dire consequences, including
arrest of all his family members and relatives unless he
submits to the dictates of the officers of the respondent No.2.
The petitioner has truthfully narrated in his oral interrogation,
all the requisite details and answers to all the questions orally
put to him. However, instead of permitting the petitioner to
record his statements as per his version and in his own
handwriting, he was coerced to sign typed statements
prepared by the officers of the respondent No. 2 without
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knowing the contents thereof. By use of coercive measures,
various such statements and endorsements thereon were
obtained from the petitioner, against his will and contrary to
the facts. The petitioner was not even permitted to read the
contents of statements recorded by the officers of the
respondent No. 2, and was directed to make a few corrections
to project otherwise. The petitioner submits that false
statements, which were fictitious creations of the officers, were
forcefully thrusted upon the petitioner and the same are far
from being voluntary and thus, even otherwise liable to be
rejected.
3.32 It is further submitted that whilst in custody of the
officers of respondent No. 2, the petitioner allegedly suffered
self-incriminating statements purportedly recorded under
Section 50 of "the Act", however, no recovery or discovery was
made on the basis of the petitioner's alleged statements.
Petitioner was not even identified by any witness. On the first
available opportunity, the said confessions were retracted by
the petitioner in his application for seeking bail and opposing
remand. The arrest and continued custody of the petitioner is
illegal, for being on the sole basis of inadmissible statements
purportedly recorded under Section 50 of "the Act".
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In addition, so far as the self-incriminatory statements of
the petitioner himself are concerned, these retracted
statements were admittedly recorded "after the arrest" of the
petitioner, in support of his submission that the statements
recorded after the arrest would not be admissible as it would
be self-incriminating under Article 20(3) of the Constitution of
India relying on a decision in the case of Ramanlal Bhogilal
Shah (Supra).
3.33 It is further submitted that in the context of cognizable
offence where statements recorded therein are held to be
admissible evidence, those statutes such as TADA, POTA,
MCOCA, etc. provide for special procedure for recording of
confession, mainly time for reflection is being given for
recording a statement under Section 164 of "the Code" with a
warning that he is not bound to make a confession and that if
made, the confession can be used against a maker thereof.
3.34 It is further submitted that the petition is not barred by
constructive res-judicata, which is a principle applicable in civil
proceedings, and has no application in a writ of habeas corpus.
The legal issues raised herein were neither raised nor decided
in the earlier habeas corpus petition dismissed on 16.10.2015.
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Moreover, specific liberty has been granted to the petitioner by
the Supreme Court while observing that the writ petition filed
under Article 32 would not come in the way of the petitioner
filing any other writ petition. It is further submitted that
thereafter again it was clarified that this Honourable Court can
decide the petition on merits. After grant of bail, S.L.P. of
respondents against bail order was dismissed by the Supreme
Court despite such objections.
3.35 On the aforesaid submissions and relying on the
decisions referred to hereinabove, it is submitted that this writ
of habeas corpus be allowed and interim order granting bail to
the petitioner may kindly be continued.
4. As against that, Mr. Devang Vyas, Senior Advocate,
learned Additional Solicitor General of India, submitted that the
present petition filed by the petitioner, in absence of any
change in the circumstance as also in absence of any grounds
agitated before this Court which were not available to the
petitioner when his earlier petition for the very same relief
came to be dismissed by a detailed reasoned order and
challenge to the same before the Supreme Court by way of
S.L.P. came to be withdrawn, cannot be entertained.
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4.1 He has further submitted that the present petition is also
not maintainable on the ground of res-judicata/constructive
res-judicata. In support of the said submission, he relied on the
case of T.P. Moideen Koya v. Government Of Kerala And
Ors., reported in (2004) 8 SCC 106 for a proposition that
once the petition of habeas corpus is dismissed under Article
226 of the Constitution of India and Special Leave Petition
against the said order is filed and any decision has been
rendered, then the same has attained the finality and the
same cannot be re-agitated in a subsequent petition, except in
two circumstances:- (i) Change of circumstance, and (ii)
Ground/s which were not available with the petitioner earlier
when it was decided and has become available at a later
stage.
4.2 He has further submitted that, the issue of legality and
validity of the detention of the present petitioner under a writ
of habeas corpus has been decided by the Honourable Court
earlier, which has attained finality after withdrawal of earlier
S.L.P. filed by the petitioner challenging the said order. It has
attained finality and no liberty is reserved by any Court of law
to file a fresh petition. Therefore, it is submitted, the same
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cannot be re-agitated or re-opened again by filing a
subsequent petition. In support of his submission with regard
to bar of res-judicata, reliance is again placed in the case of
T.P. Moideen Koya (Supra) as also in the case of Devilal
Modi v. Sales Tax Officer, reported in AIR 1965 SC 1150.
He has further submitted that the petitioner is guilty of making
misrepresentation as well as suppression of material facts
before this Court, and therefore, the petitioner, who has scant
regard for the law, is not entitled to any equitable relief under
Article 226 of the Constitution of India, that too, in a successive
writ of habeas corpus without any change of circumstance.
4.3 Drawing attention of the Court to averments made in
para 3.12 of the petition, at page 7, it is submitted that the
said petition was mainly challenging:- (i) Vires of Section 45 of
"the Act", (ii) lack of jurisdiction of the investigating officer
under "the Act" for effecting arrest under Section 19 due to
lack of proper appointment under Section 49, and (iii) Non-
communication of grounds of arrest to the petitioner with
prayers inter-alia for issuance of a writ of habeas corpus.
4.4 Drawing attention of the Court to the earlier petition filed
and the order passed by this Court, more particularly, the
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earlier judgment annexed with this petition at page 154 it is
submitted that not only writ of habeas corpus was prayed for,
over and above the aforesaid relief, the impugned arrest order
dated 01.09.2014 was requested to be decided along with the
consequent remand proceedings, as arrest being manifestly
illegal without jurisdiction, null and void-ab-initio for clear
violation of :-
(i) The directives of the Honourable Supreme Court in
the case of D.K. Basu v. State of West Bengal,
reported in (1997) 1 SCC 416.
(ii) The provisions of "the Act" including amongst
others of Section 19(1) of "the Act", which mandatorily
prescribes the arrest to be made on the basis of such
'material possession', on the basis of which there exists
'reason to believe' that person is 'guilty' of an offence
under "the Act"; 'which shall be recorded in writing' and
pursuant to arrest to inform him of the grounds for such
arrest.
(iii) Rules notified by Central Government vide GSR
446(E) dated 01.07.2005.
(iv) Notification GSR 44(E) dated 01.07.2005 issued by
Central Government appointing Director to exercise the
exclusive power conferred under Section 19 of "the Act".
(v) Articles 14, 21 & 22 of the Constitution of India.
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Therefore, it is submitted, the aforesaid prayers though
prayed for are not granted and the said decision of this Court
has attained finality. Therefore, petitioner is guilty of not
placing correct facts before the Court and is placing only the
convenient facts with a view to obtain interim order from the
Court.
4.5 Drawing attention of the Court to para 3.18 of the
petition, it is submitted, that he has also made false statement
in it that pursuant to such liberty granted by the Supreme
Court, the instant writ petition under Article 226 of the
Constitution of India seeking issuance of a writ of habeas
corpus is being filed by the petitioner. It is very specifically
mentioned in it that the grounds urged in the instant petition
were not urged in the earlier petition filed before this Court,
which was dismissed on 16.01.2015 .
4.6 Drawing attention of the Court to the order passed by
the Apex Court in SLP (Cr.)...CRLMP No. 7277 of 2012 at page
297 of the compilation, it is submitted that there is no such
liberty granted to the petitioner for filing writ petition under
Article 226 of the Constitution of India again.
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4.7 It is further submitted that the very averment in the
petition at para 3.18 suggests that this petition is not filed on
any new available grounds, which were not available to the
petitioner when the earlier petition was determined. Therefore,
relying on the decision of Supreme Court in the case of T.P.
Moideen Koya (Supra), it is submitted that this successive
petition praying for writ of habeas corpus is required to be
rejected on the said ground alone. For the issue of suppression
of material facts and maintainability of petition, learned ASG
has relied on a decision in the case of K.D. Sharma v. Steel
Authorities Of India Ltd. & Ors., reported in (2008) 12
SCC 481. He has further submitted that since the arrest of the
petitioner is neither unlawful nor the same is in violation of
provisions of any other law or statute, more particularly, when
there is a clear finding of the Division Bench of this Court that
the arrest of the petitioner is legal and valid, the present
petition should not be entertained. For the same, he has relied
on a decision of Delhi High Court in the case of Moin Akhtar
Qureshi v. Union Of India & Ors, reported in 2017 SCC
OnLine Del 12108.
4.8 He has further submitted that the petitioner is not
entitled to seek the writ of habeas corpus after the rejection of
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his regular bail application, not only by Sessions Court but also
by this Court vide its order dated 31.03.2015 in Cr.M.A. No.
3637 of 2015, which is at page 279 of the compilation. Not
only that, against the said order, the petitioner had preferred
S.L.P. (Cri.) No. 3978-79 of 2015, which also got dismissed by
the Honourable Supreme Court and the copy thereof is
annexed with the petition at page 294.
4.9 Drawing attention of the Court to the grounds A. to C.
with regard to provisions of Section 45 of "the Act" along with
the other provisions of "the Act", which has been considered
and dealt with by the Division Bench of this Court in earlier
habeas corpus petition, the finding recorded by the Court has
attained finality after the Special Leave Petition filed against
the order has come to be withdrawn by the petitioner.
4.10 He has further submitted that the Division Bench in the
earlier writ petition praying for same relief considered various
provisions of "the Act" as well as the case law cited in this
regard along with the aspect of legality and validity of
detention on the touchstone of Article 22 of the Constitution of
India and held that the arrest of the petitioner does not violate
Article 22 of the Constitution of India. The issue of production
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of petitioner before the competent designated Court and
remand granted by the competent Court has also been raised
and considered by the Court in earlier petition. Therefore, it is
submitted, it is not open for the petitioner to raise any such
ground again.
4.11 He has further contended that so far as not following
provision of Sections 167 and 172 of "the Code" is concerned,
the petitioner could have raised such an issue in earlier
petition, which was very much available at that time. The said
contention based on those provisions available and not raised,
cannot be said to be a change of circumstance or a change of
ground to question his arrest in connection with the present
offence in this successive writ of habeas corpus. It is further
submitted that after the issue of detention attained finality, it
is not open for the petitioner to challenge the substance of
detention in a different context of a matter. Relying on a
decision, to contend that violation of procedure prescribed
under Section 167 of "the Code" cannot be agitated in a writ of
habeas corpus, that too, at a belated stage in a successive
petition in the case of Serious Fraud Investigation Office
v. Rahul Modi & another, reported in (2019) 5 SCC 266,
and therefore, the same is not maintainable.
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4.12 Relying on the decision of Bombay High Court in the
case of Chhagan Chandrakant Bhujbal vs Union Of India
& Ors., reported in 2016 SCC OnLine Bom 9938, it is
contended that all the issues and contentions raised by the
petitioner in these proceedings were also raised before the
Bombay High Court and the Bombay High Court has answered
all those issues and writ of habeas corpus filed by petitioner
therein came to be dismissed and the said decision has
already attained finality. Therefore, he has submitted that this
petition be dismissed.
5. Having heard the learned advocates for the appearing
parties and going through the documents annexed with the
petition as also decisions relied on by the parties, it emerges
that this successive writ of habeas corpus is filed after the
petitioner is arrested in connection with the offence, as
aforesaid, and his application for bail came to be rejected by a
competent Court i.e. Special Designated Court, and the said
order is also confirmed by this Court in bail proceedings filed
by the petitioner with detailed reasoned order and it's
challenge to the same before the Supreme Court came to be
dismissed, though, with a liberty to move the same after a
period of 6 months thereof.
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5.1 However, instead of waiting for 6 months to be over and
applying again for bail in connection with that offence after 6
months, as permitted by the Supreme Court, the petitioner
has, within no time of dismissal of his bail application, filed this
successive writ of habeas corpus, claiming to be on the
grounds which were not raised in the earlier writ petition.
5.2 As such, in absence of any change in circumstance, that
too, substantial change and not the cosmetic change and in
absence of any grounds, which were not available to the
petitioner when his earlier petition was determined, mere
change of an advocate or swift change in the submission,
though available at that time when earlier petition is
determined, cannot be permitted to be agitated again in a
successive petition to a judgment and order, which already
attained finality.
Though it is vehemently objected that petition is barred
by res-judicata or a constructive res-judicata, without entering
into such debate, more particularly when, a detailed reasoned
order is passed by this Court in this petition on 03.08.2015,
considering that issue also and the said order having become
final, as challenge to the same failed, it is required to be
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considered in this petition whether it raises any grounds which
were not available at the time when earlier petition was
determined, or not.
5.3 In a writ of habeas corpus, maybe successive, only issue
would be whether arrest and continued detention is legal or
not. If a person is arrested by an officer duly authorized by law,
produced before the Court and remanded to custody of such
officer and then to the judicial custody, in absence of challenge
to the said orders, no writ of habeas corpus could have been
filed or entertained. Neither in the earlier petition nor in this
successive petition, without there being any substantial
change in the circumstance, there is no any challenge to the
order passed by the competent Court committing the
petitioner to custody and his application praying for an order of
bail in connection with that offence having become final up to
the Supreme Court. Merely because an advocate is changed
and a submission is made in a different manner raising
different issues, it can never be said that those submissions
and the issues were not available to the petitioner when first
petition was determined. It can never be said to be a ground to
assail the custody of the petitioner but it can be said to be
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different arguments for challenging the very same action
which was already available when earlier petition is
determined, and not raised till that order has attained finality
up to the Supreme Court, petitioner cannot be permitted to
raise such arguments again, as those arguments are not such
that which could have become available only after his earlier
petition is determined.
Therefore, this successive petition praying for writ of
habeas corpus is required to be rejected on that ground alone.
However, very vehemently it is submitted by the learned
Counsel for the petitioner that the offence under "the Act",
though stated to be cognizable when "the Act" was enacted
but by way of amendment in the year 2005, the statute was
silent and the said part came to be omitted. Relying on a
parliamentary debate, it is vehemently submitted that while
envisaging difficulties in implementing the law, the
coginizability of the offence under "the Act" came to be
omitted purposefully, and therefore, the offence under "the
Act" can be said to be non-cognizable.
5.4 Buttressing his arguments with the help of provisions
under Section 155 of "the Code", it is submitted that once the
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offence is non-cognizable, either police or any officer cannot
arrest the accused without a warrant issued by the concerned
Magistrate. Not only that, if he wants to investigate into the
offence or effect an arrest of the accused, he must seek
permission of the Court. Neither of the action is initiated by the
officer concerned effecting arrest of the petitioner and
investigating into the offence, his arrest as also continued
detention has become illegal.
5.5 The said submission reflects total misreading of an
amending Act, 2005, whereby the cognizability part came to
be omitted by amending Act. However, the learned Counsel for
the petitioner lost sight of the fact that though "the Act" was
enacted in the year 2003, it was never enforced throughout
the country. However, it was made enforceable from
01.07.2005 and when the whole Act came to be enforced,
there was no provision under "the Act" except the title of
Section 45, which states offences to be cognizable and non-
bailable. It is vehemently submitted that title of the Section is
not to be utilized for the interpretation of the provisions under
"the Act". May it be a guiding factor but not the conclusive
factor to determine the provisions under "the Act".
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5.6 Going through the provisions of "the Act", the day on
which it is enforced, "the Act" was consciously silent as to
cognizability. However, it can never be construed as non-
cognizable. But when "the Act" was to be enforced, it was
consciously omitted so as to deprive police authority from
probable misuse of the special provisions made under "the
Act" it could never be said to be a non-cognizable offence.
Therefore, the contention of the petitioner that since "the Act"
was enacted, the provision says the offence under "the Act" to
be cognizable but while it was enforced by way of amendment,
the said provision is omitted that means it is non-cognizable,
has no legs to stand. Therefore, invoking Section 155 of "the
Code" by the officer under "the Act" while effecting arrest, who
is empowered, is not at all required. The contention that for an
inquiry, investigation or trial, procedure prescribed under "the
Code" has to be followed, and the procedure for investigation
into non-cognizable offence is prescribed under Section 155 of
"the Code", and therefore, under "the Act", investigating
officer/authority has to follow provisions of Section 155, is an
incorrect impression of the learned Counsel appearing for the
petitioner.
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The officers, who are entrusted with the duty of inquiring
into or investigating into the offence under "the Act" are
empowered to conduct survey, carry out search & seizure,
search of a person, power of arrest, retention of properties,
retention of records, as provided under the law and he has to
inquire into or investigate into the same in accordance with the
special Act. He need not resort to Section 155 of "the Code", as
in absence of any provision contrary in "the Act", keeping in
mind the sentence prescribed under "the Act", the offence
under Schedule-II appended to "the Code" would become
operational, and therefore, the offences under "the Act" when
whole Act is enforced was cognizable since that date and with
the recent amendments in "the Act", as specifically said so
with a view to avoid any further conflict and room for such
dispute. So, the offences under "the Act" since the date of its
enforcement throughout the country, were cognizable. Since
different procedure and provisions are made for the purpose of
inquiry into/investigation into the offence under "the Act", any
general provision made in "the Code" would be inconsistent
with "the Act", and therefore, the provisions made under "the
Act", would prevail, and therefore, the officer concerned is not
supposed to invoke provisions of Chapter XII of "the Code",
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which includes Section 155 of "the Code". Under "the Act",
when there is a special procedure and special empowerment to
the officer concerned for the purpose of inquiring into or
investigating into is entrusted, it has an overriding effect and
procedure prescribed under "the Code" is inconsistent with
"the Act", and therefore, also officer concerned need not seek
permission from the Magistrate to arrest the accused under
"the Act" or carry out investigation into the offence under "the
Act".
5.7 Over and above that, these very arguments were
available at the time when first petition praying for writ of
habeas corpus was filed and not raised, with the change of an
advocate it cannot be termed as change of grounds to assail
the judgment and order, which has attained finality praying for
the very same relief, more particularly when arrest in
connection with an offence and detention in judicial custody of
the petitioner pursuant to arrest is held to be legal. Even if
change of an advocate is construed to be change of
circumstance to an available ground, which was available
when earlier petition was determined, as concluded
hereinabove, the offences under "the Act" were cognizable
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since the day of enforcement of "the Act" and the officer, who
has arrested the accused, was empowered to arrest the
petitioner, and therefore, neither the arrest nor the detention
in the custody at the time when it was effected and as on date,
be said to be illegal. When his successive petition for writ of
habeas corpus is considered, the offence is cognizable, and
therefore, arrest can be effected without warrant by an officer
authorized under "the Act" and he need not go to the
Magistrate for issuance of warrant to effect the arrest of the
accused. If, when the arrest is made it was legal, as he was
committed to judicial custody, it was legal, even when his
successive petition for a writ of habeas corpus is considered, is
also legal, petitioner cannot be said to be in illegal
confinement so as to entertain this petition again on the very
same grounds which were available at the time when first
petition was determined and specifically not raised, cannot be
said to be change of circumstances so as to consider it again.
5.8 Even if it is considered again, in view of the fact that
when the arrest was effected, the offence was cognizable and
when his successive petition for a writ of habeas corpus is
considered, it is specifically stated to be cognizable by making
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provisions into "the Act" itself, so as to avoid any other dispute
with regard to its cognizability, this writ petition cannot be
entertained on that ground.
5.9 Though it is submitted that from the series of orders
passed by the earlier Division Benches, this Honourable Court
has been awaiting the final view of the Supreme Court in the
case of Vijay Madanlal Chaudhary & Ors. v. Union Of
India & Ors., reported in 2022 SCC OnLine 929 and
subsequently, in review applications that are pending post said
judgment, the issues are pending before the Honourable
Supreme Court will have a direct bearing on the adjudication of
issues on merits pending before this Court.
The said argument is not required to be entertained for
the reason that in the case of Vijay Madanlal Chaudhary
(Supra), Supreme Court has put to rest several questions
raised under "the Act" answering constitutional validity and
interpretation of certain provisions of other statutes, including
the Customs Act, 1962, the Central Goods & Services Tax Act,
2017, the Companies Act, 2013, the Prevention of Corruption
Act, 1988, the Penal Code, 1860 and the Code of Criminal
Procedure, 1973, which were under challenge before the
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Supreme Court. However, Supreme Court confined the
challenge to the provisions of "the Act" only and answered the
same holding it to be constitutionally valid.
5.10 The review petitions, which are pending before the
Supreme Court, as submitted by the learned Counsel
appearing for the petitioner and the copy of order shown to the
Court was restricted to two issues only but which were those
two issues, is neither mentioned in the order nor stated by the
learned Counsel for the petitioner. However, pendency of
review petitions before the Supreme Court will not detain this
Court from considering this writ petition, which is admitted in
the year 2015 and ripe for final hearing, as ultimately
whatever order is passed in this petition would be open to
challenge before higher forum, even if review petitions are
pending, and challenge to the same would be governed in
accordance with outcome of the order in review petitions.
5.11 So far as Transfer Petition (Cri.) No. 461 of 2023 filed by
the petitioner before the Supreme Court, invoking Article 139A
of the Constitution of India is concerned, as submitted by the
learned advocate for the petitioner, the same came to be
dismissed as withdrawn. Therefore, also this Court need not
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wait when it was in the midst of hearing, Transfer Petition was
filed and concluded hearing even prior to the outcome of the
same.
5.12 Strong reliance is placed by the learned Counsel
appearing for the petitioner on the decision of Delhi High Court
in the case of Rajbhushan Omprakash Dixit (Supra)
decided by the Division Bench of Supreme Court on the issue
whether offences under "the Act" are cognizable or not, more
particularly paras 24 to 35 of the said decision to submit that
the opinion expressed by the Division Bench of the Delhi High
Court to the submissions made that the offences under "the
Act" are non-cognizable. Relying on the Statement of Objects
and Reasons of Prevention of Money Laundering (Amendment)
Bill and Debates in Lok Sabha, it is submitted that the arrest
made by the officer concerned is illegal as he had neither
sought for any permission from the Magistrate to arrest the
accused in connection with the offence nor had he obtained
permission of the Magistrate to investigate into the said
offence against the accused as it is non-cognizable offence.
5.13 The decision of the Division Bench of Delhi High Court
in the case of Rajbhushan Omprakash Dixit (Supra) misses
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the aspect that omitting every offences punishable under "the
Act" to be cognizable, which was there when "the Act" was
enacted but never enforced, while enforcing "the Act", omitting
that part or provision or deleting the same, the offence would
not become non-cognizable automatically. It was with a view to
see that only the officers including certain category of police,
who are empowered under "the Act", investigate into the
offence under "the Act" and not all the police officers.
Therefore, under Section 19 of "the Act", only a Director or a
Deputy Director or an Assistant Director or any other Officer
authorized are empowered to arrest the offender whereas if
offence is stated to be cognizable, every police officer can also
arrest offender without warrant. To avoid another conflict,
providing no cognizance of any offence punishable under
Section 4 of "the Act", except upon a complaint made in
writing by the Director or any other officer authorized by the
Central Government, by the special Court, whereas what will
happen to the arrest made by the police and which would be
the Court to try the offence, it appears to be omitted/deleted.
5.14 However, cognizability or non-cognizability of the
offences under "the Act" would not detain this Court any
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further so far as present petition is concerned, as in our view,
the arrest of the accused for commission of an offence under
"the Act" is made by an officer empowered under "the Act" and
in accordance with the provisions made under "the Act", which
is already determined in an earlier petition filed before the
Court and it has attained finality. Once arrest is held to be
legal, his detention or committal to the custody either to the
officer concerned or of the Court, cannot be said to be an
illegal confinement, and therefore, writ of habeas corpus, that
too, successive writ of habeas corpus, cannot be entertained.
5.15 So far as applicability of Chapter XII of "the Code" is
concerned, the said submission made in respect of
investigation into the offence under "the Act" is concerned, is
misconceived. In absence of any contrary provision made
under any special Act, classification of offences as cognizable
or non-cognizable, bailable or non-bailable and the Court by
which triable, would be governed under the II nd Schedule of
"the Code". Therefore, whether offence under any special Act
is cognizable or not, in absence of any contrary provision made
in the special Act, would be dependent on the sentence
provided therein for the offences with which it is punishable.
Under "the Act", there is no inconsistent provision with that of
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"the Code" so far as the II nd Schedule is concerned. Therefore,
keeping in mind the sentence provided under Section 4 of "the
Act", all offences would be cognizable and non-bailable.
However, provision made in II nd Schedule with regard to the
Court by which it is triable, since it is inconsistent with "the
Act", the said provision would not be applicable so far as it
relates to the Court by which offences under "the Act" is
triable, in view of Section 65 of "the Act".
5.16 At the same time, when the officers duly trained for
dealing with the inquiry or investigation into the offences
under "the Act" have only been authorized to investigate the
case with a power to arrest the accused, on fulfillment of the
provision made under Section 19 of "the Act", they need not
seek permission of the Magistrate, as provided under Section
155 of "the Code", as it would again be inconsistent with the
specific provision made under "the Act". Once the offence
under "the Act", in view of Schedule-II of "the Code", becomes
cognizable, the officer, empowered under "the Act" to
investigate the offence under it need not seek permission
under Section 155 of "the Code", as submitted by the learned
Counsel for the petitioner.
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In absence of any inconsistent provision of Section 167 of
"the Code", which also falls in Chapter XII of "the Code" made
in "the Act", it has to be followed and that would be the only
correct interpretation consistent with the provisions made
under "the Act".
Thus, when "the Act" was enacted, the offences under
"the Act" were cognizable and by way of amendment, while
enforcing "the Act", the said provision is deleted or omitted
would not render the offences under "the Act" to be non-
cognizable. It is only when despite the sentence prescribed, as
stated in Schedule-II of "the Code" to say offence to be
cognizable or non-bailable, making specifically offences under
"the Act" to be non-cognizable, the provisions under Section
155 of "the Code" requiring the officer concerned to seek
permission of the Magistrate before arresting the accused or
entering upon investigation would arise. Decision in the case of
Om Prakash (Supra) would not be applicable to the present
case, as the scheme of Central Excise Act, 1944 was
considered therein and in view of Section 9A of that Act,
certain offences are specifically stated to be non-cognizable
under that Act, and therefore, it was interpreted to be bailable,
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even in view of Schedule-II of "the Code". Therefore, the said
decision cannot be relied upon by the learned Counsel
appearing for the petitioner in support of the submission that
officer concerned before effecting arrest under "the Act" is
required to follow provisions of Section 155 of "the Code".
5.17 In the Central Excise Act, 1944, offence under "the Act"
is specifically stated to be non-cognizable. Therefore, under
the special Act, when offence is stated to be non-cognizable
resort to Schedule - II of "the Code" is not required at all for
determining whether the offence is cognizable or non-
cognizable. Once under the special Act, like Central Excise Act,
offences under that Act specifically stated to be non-
cognizable, the necessary procedure for the inquiring or
investigating into the offences under that Act, in absence of
any provision made in the special Act i.e. Central Excise Act,
one has to resort to the provisions made under "the Code".
Whereas when "the Act" is enforced, the special statute
is silent about offences under "the Act" to be cognizable or
non-cognizable, resort to Schedule - II of "the Code" be made,
in absence of specific bar under "the Act".
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In view thereof, for the purpose of inquiring and
investigating into the offence under "the Act", in absence of
any contrary provision made in "the Act", provisions of "the
Code" would be applicable. Under Section 155 of "the Code",
no police officer can investigate into non-cognizable offence
without the order of a Magistrate. However, officers authorized
under "the Act" to inquire or investigate into the offence under
"the Act" are not police officers and when there is no provision
like Central Excise Act made, making offences under "the Act"
to be non-cognizable, Schedule - II of "the Code" would be
made applicable for stating the offence to be cognizable or
non-cognizable based upon the sentence prescribed.
In view of the fact that there is no contrary provision
made under the special Act i.e. "the Act", the Schedule - II of
"the Code" would be applicable. Therefore, the confusion
attempted to be created by the learned Counsel for the
petitioner, based on offences under "the Act" to be cognizable
or non-cognizable, is without any substance. Putting at rest the
controversy attempted to be raised by the accused of offence
under "the Act", with effect from 01.08.2019, an explanation to
Section 45 of "the Act" came to be inserted, which reads as
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under:- "
45. Offences to be cognizable and non-bailable.--
(1) ...
(2) ...
[Explanation.--For the removal of doubts, it is clarified
that the expression "Offences to be cognizable and non-
bailable" shall mean and shall be deemed to have always
meant that all offences under this Act shall be cognizable
offences and non-bailable offences notwithstanding
anything to the contrary contained in the Code of
Criminal Procedure, 1973 (2 of 1974), and accordingly
the officers authorised under this Act are empowered to
arrest an accused without warrant, subject to the
fulfillment of conditions under section 19 and subject to
the conditions enshrined under this section.]".
By way of said explanation, for removal of doubts, it is
clarified that expression "Offences to be cognizable and non-
cognizable', shall mean and shall be deemed to have always
meant all offences under "the Act" to be cognizable and non-
bailable notwithstanding anything contrary contained in "the
Code". At the same time, though officers empowered under
"the Act" to arrest the accused subject to fulfillment of the
conditions under Section 19, they are again not a police officer
despite offence is stated to be cognizable. At the same time,
while enforcing "the Act" itself, sub-section (1-A) of Section 45
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came to be inserted, prohibiting police officers investigating
into an offence under "the Act" unless specifically authorized
by the Central Government by general or special order and
subject to such conditions, as may be prescribed.
Therefore, any provision made under "the Code" for the
purpose of inquiring or investigating into the offence by the
police officers shall not apply to the offences under "the Act"
unless specifically provided for in "the Act". The provision
under "the Code" for inquiry and investigation into the offence
would be applicable to the police officers, who are inquiring or
investigating into any offence. However, if any special statute
provides for any inconsistent provision for the purpose, the
provisions under "the Code" will not be applicable being
general law for the purpose of inquiring and investigating into
the offence. Considering the provisions made under "the Act"
and "the Code", with applicability of "the Code" to the offences
under "the Act" so far as they are not inconsistent with the
provisions of "the Act" to arrest, search and seizure,
investigation ... with an overriding effect, as provided under
Section 71 of "the Act", is concerned, the day on which
petitioner came to be arrested, the officer concerned was
authorized to arrest him for the offence punishable under "the
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Act" and challenge to that arrest in respect of his authority and
provisions made under Section 19 is put to rest in an earlier
petition filed by the petitioner, it is not open to challenge in
this successive petition for writ of habeas corpus. At the same
time, presuming it to be maintainable, the date on which this
petition is taken up for consideration, the arrest which is made,
cannot be said to be illegal in view of the fact that offences
under "the Act" are stated to be cognizable and non-bailable.
Arrest which was made cannot be termed as illegal as on date
and when pursuant to legal order made, remanding the
accused to the custody of officer concerned as also judicial
custody thereafter, cannot be termed to be illegal. As on date,
petitioner has never challenged his order of remand to judicial
custody. Not only that, the Court of competent jurisdiction by a
detailed order, rejected his application for bail. Even this Court
has also rejected his application for bail. Not only that, even
Supreme Court has dismissed his S.L.P. praying for an order of
bail in connection with the offence for which he is arrested
under "the Act".
5.18 There is no necessity to enter into a controversy raised
between the parties whether res-judicata or constructive res-
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judicata will apply to the petitions under writ of habeas corpus
or not, for the simple reason what is sought to be argued as
new grounds, were the grounds available to the petitioner,
when his earlier petition was heard and finally determined
against him and the challenge to the same has failed, maybe
by withdrawal of S.L.P., with the change of an advocate the
arguments which were though available and were not argued,
cannot be said to be a substantial change so as to entertain
successive petition praying for a writ of habeas corpus. All
those submissions in respect of authority of the officer, who
effected the arrest, came to be determined in an earlier
petition against petitioner and the challenge to the same
having failed, on any other ground that arrest cannot be said
to be illegal, more particularly when pursuant to the arrest,
Court has remanded the petitioner to judicial custody and that
order is also not challenged in any proceedings. The order
passed by this Court in earlier petition has attained finality
with the failure of the challenge made there against with no
permission granted by the Supreme Court to challenge it
afresh. Therefore, the submission made by the learned
Counsel for the respondent authority that this successive
petition for writ of habeas corpus would not be maintainable as
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there is neither any change of circumstances nor the grounds
which are sought to be argued now, be said to be not available
when first petition was filed and concluded and the said order
having attained finality, it cannot be urged as a different
ground. The argument on whatever ground which is available
when earlier petition was filed when argued in a successive
petition, maybe in a writ of habeas corpus, cannot be said to
be on different ground which were not available when the
earlier petition was decided, there remains no finality to any
order; however, the points which are argued based on
applicability of Chapter XII of "the Code" and much emphasis
laid on Section 155 of "the Code" are already dealt with
earlier.
5.19 The reliance placed on a decision in the case of
Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat
and Ors., reported in (2013) 1 SCC 314 to submit that
habeas corpus petition cannot be entertained when a person is
committed to judicial custody or police custody by competent
Court by order, which prima-facie does not appear to be
without jurisdiction nor which is passed in absolutely
mechanical manner nor is wholly illegal.
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It would be profitable to reproduce same as under:-
Para 31 ..."It is well accepted principle that a writ of
habeas corpus is not to be entertained when a person is
committed to judicial custody or police custody by the
competent court by an order which prima-facie does not
appear to be without jurisdiction or passed in an
absolutely mechanical manner or wholly illegal"....
Discussed as stated hereinabove, neither the arrest made
by the officer concerned at the relevant time, nor order of
remand either to the custody of officer or judicial custody,
passed by the concerned Magistrate/Judge can be said to be
illegal at the time when it is effected nor it can be said as on
the date of consideration of this successive writ of habeas
corpus to be illegal, this successive writ of habeas corpus
cannot be entertained on the grounds submitted by the
learned Counsel for the petitioner.
5.20 The submissions made by the learned Counsel for the
petitioner that the arrest of the petitioner is based on
statement recorded under Section 50 of "the Act" are not
admissible in evidence based on the decision in the case of
Tofan Singh (Supra). The submission that there is no
material against the petitioner to detain him in custody except
the statement recorded under Section 50 of "the Act" and such
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statement, having been recorded by the officer concerned
cannot be said to be admissible, is not required to be dealt
with as the issue whether there is any material to arrest the
accused or not has already been examined by the Court in an
earlier petition as also by the competent Court while
remanding the accused to the judicial custody and once arrest
is held to be legal, the said argument requires appreciation of
material/evidence in an appropriate proceedings at
appropriate stage. However, when it is to be considered
whether the arrest is made by a person authorized by law and
whether petitioner can be said to be illegally confined pursuant
to arrest or not, the said submission has no relevance while
determining writ of habeas corpus, that too, successive writ of
habeas corpus.
5.21 The reliance placed on the decision in the case of
Chhagan Chandrakant Bhujbal (Supra) by the learned
Counsel for the respondent authority applies with full force
from all corners on all the issues agitated by the petitioner,
having answered against the petitioner in the said decision.
5.22 Once it is held that the initial arrest and detention in the
judicial custody by a judicial order, which has become final and
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not challenged in any proceedings, cannot be said to be illegal,
this successive writ of habeas corpus cannot be entertained
further. All those other issues can be agitated by the petitioner
for the purpose of either bail or discharge or ultimate acquittal
in the trial.
5.23 Reliance placed on the decision, as the arguments of
the petitioner in the case of Rajbhushan Omprakash Dixit
(Supra) is also misplaced, as by the said order, Division Bench
of the Delhi High Court referred the matter to a larger Bench,
as it did not agree with the decision of a coordinate Bench of
that Court in the case of Moin Akhtar Qureshi (Supra) as
also Vakamulla Chandrashekhar v. Enforcement
Directorate & Anr. of that very Court rendered in W.P.
(CRL.) No. 852 of 2017 dated 08.05.2017 and referred the
matter under consideration to a larger Bench saying that both
these decisions referred to hereinabove requires
reconsideration. However, there appears no final conclusion
reached by the Division Bench of the Delhi High Court in the
said decision. Over and above that, decision in the case of
Vakamulla Chandrashekhar (Supra) was doubted, which
held that "Notwithstanding the 2005 amendment to Section 45
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of the PMLA, there is no positive indication in Section 45 that
the offences under the PMLA had become non-cognizable".
Despite noting in para 28 of the judgment that "After the
amendment, the police cannot take cognizance of the offence
under Section 3 of the PMLA Act", the Division Bench observed
that "Even if the offence is no longer cognizable for the
purposes of "the Code" i.e. the police cannot take cognizance
for the said offence, it does not follow that the authority under
"the Act" would not carry out investigation on their own".
Based on it, it did not find in consonance with the express
legislative intent, evident not only on a plain reading of the
amended Section 45 of the PMLA, but even with reference to
the Statement of Objects and Reasons to the PMLA
Amendment Bill and the debates in the Lok Sabha. As such it
did not determine an issue as a binding precedent while
referring it to larger Bench, not agreeing with the binding
precedents of two Division Benches of the very same Court, it
cannot be termed as a precedent even having a persuasive
value. The opinion expressed therein cannot be followed for
the simple reason that, whether offence is cognizable or not,
as on the date of enforcement of "the Act" is irrelevant when
officer, who effects arrest under Section 19, authorized and
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fulfilling the conditions therein, it cannot be held to be illegal
and production of the arrested accused before the competent
Court, sending him in judicial custody also cannot be said to be
illegal, this Court cannot wait till the decision of a larger Bench
on reference made by Division Bench of the Delhi High Court in
the case of Rajbhushan Omprakash Dixit (Supra) as this
Court is in full agreement with the decisions rendered by
Bombay High Court in the case of Chhagan Chandrakant
Bhujbal (Supra), Vakamulla Chandrashekhar (Supra) &
Moin Akhtar Qureshi (Supra) of Delhi High Court, and
Karam Singh & Ors. v. Union Of India & Ors., rendered in
C.W.P. No. 3317 of 2015 of Punjab & Haryana High
Court, and therefore, the said contention is hereby rejected.
5.24 The Bombay High Court in the case of Chhagan
Chandrakant Bhujbal (Supra) has also very well considered
the debates of parliament, Statement of Objects and Reasons,
Amendment Act, 2013, several provisions of "the Act" and
majority of the decisions (almost all relied upon by the learned
Counsel for the petitioner). As also order dated 03.08.2015
rendered in this very proceeding was also relied on by the
learned Counsel for contending that the offences under "the
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Act" are not cognizable and even if they are cognizable, the
procedure prescribed under Chapter XII of "the Code" is bound
to be followed, otherwise Article 21 of the Constitution of India
would be violated, is rightly not accepted by the Court as it
was at an interim stage and no final conclusion is reached. The
Division Bench of Delhi High Court has rightly not relied on the
said decision for the very same reason. The Bombay High
Court has also, relying on decisions of Supreme Court, held
that "An interim order which does not finally and conclusively
decide an issue, cannot be a precedent. Any reasons assigned
in support of such non-final interim order containing prima-
facie findings are only tentative". For the very same reasons,
the referring order to a larger Bench of the Division Bench of
Delhi High Court in the case of Rajbhushan Omprakash
Dixit (Supra) cannot be relied on, as even no tentative
conclusion is reached therein but merely considering the
debate of parliament, contention raised on the side-notes i.e.
Heading of the Section, the Division Bench concluded that two
decisions of Delhi High Court of the coordinate Benches were
required to be reconsidered, and therefore, referred that case
to a larger Bench. Therefore, the submission that what is
recorded in that order be considered as an argument of the
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learned Counsel for the petitioner is also required to be
rejected as those very arguments were advanced before the
Bombay High Court in the case of Chhagan Chandrakant
Bhujbal (Supra) and were not accepted.
5.25 Furthermore, the order of the Delhi High Court in the
case of Rajbhushan Omprakash Dixit (Supra) referring the
matter to a larger Bench, is again contrary to the decision in
the case of Serious Fraud Investigation Office (Supra) of
the Supreme Court. So far as it determines issue with regard to
maintainability against judicial order remanding the accused to
the custody, maybe police or judicial, as held in that decision
of the Supreme Court, proper remedy there against would be
recourse to appropriate appellate or revisional proceedings
and not the writ of habeas corpus. As such, the decision of the
Supreme Court in the case of Serious Fraud Investigation
Office (Supra) is subsequent to the referring order by the
Delhi High Court in the case of Rajbhushan Omprakash
Dixit (Supra), and therefore, it would not have been
considered by the Delhi High Court but, at any rate, the
learned Counsel, who appears all throughout in such matters
and aware of all latest law, was expected to refer the decision
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of the Supreme Court in the case of Serious Fraud
Investigation Office (Supra) before harping on the referring
order of the Division Bench of the Delhi High Court, saying it to
be the contention of the learned Counsel on behalf of the
petitioner.
5.26 The Supreme Court had an occasion to consider and
answer the whole scheme of "the Act" as also the arguments
advanced by the accused on one hand and the prosecution on
the other, relying on almost all the decisions which have been
relied on by the learned Counsel for the petitioner as also the
learned Counsel for the respondents in the case of Vijay
Madanlal Chaudhary (Supra), putting to rest all the issues
raised by the learned Counsel for the petitioner relying on the
very same decisions which have been relied on here, whereby
bunch of petitions challenging validity and interpretation of
provisions of "the Act" and the procedure followed by the E.D.
while inquiring/investigating into offences under "the Act"
being violative of the constitutional mandate. The Supreme
Court recorded conclusion in the case of Vijay Madanlal
Chaudhary (Supra) in para 467, answering all the questions
raised by the petitioner herein, relying on all the decisions
cited at the bar, including the one that the statement recorded
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by the authorities under Section 50 of "the Act" are not hit by
Articles 20(3) and 21 of the Constitution of India.
6. While we were finalizing this judgment, we came across
the judgment of the Supreme Court having neutral citation
2023 INSC 677 in the case of V. Senthil Balaji v. The State
Represented by Deputy Director and Ors., rendered in
Criminal Appeal Nos. 2284-2285 of 2023 dated 07.08.2023,
wherein alongwith other Senior Counsels, Mr. Vikram
Chaudhary, learned Counsel, who represents the petitioner
herein, also appeared before the Supreme Court in that case
as referred to in para 13 of the aforesaid decision. Though
names of two other eminent Senior Counsels for the appellants
therein is referred to therein, all the contentions which are
raised before this Court in successive writ of habeas corpus,
which have been answered by the Supreme Court are against
the appellants therein. As coming out from para Nos. 29 and
30, it is held that as a matter of rule, an order of remand by
judicial officer, culminating into a judicial function cannot be
challenged by way of a writ of habeas corpus, while it is open
to the person aggrieved to seek other statutory remedies. Here
in the present case, order committing the petitioner to the
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judicial custody has not been challenged and if it is challenged,
it should be by way of other statutory remedy available with
him. At the same time, his bail application has come to be
dismissed by the competent Court and it has attained finality,
as it is dismissed by the Supreme Court also. The arguments
based on Sections 4 and 5 of "the Code" for the purpose of
investigation invoked has already been answered by the
Supreme Court in the aforesaid decision and conclusion is
reached in para 45 thereof, which reads as under;-
"45. Sub-section (2) to section 4 of the CrPC, 1973
amplifies the fact that any inquiry or investigation,
along with their process, over an offence should
necessarily be only under that statute and not under the
CrPC, 1973. The aforesaid position has been reiterated
under Section 5 of the CrPC, 1973 whereby a distinct
clarification has been given that the CrPC, 1973 will not
stand in the way of the operation of special law. Thus, a
conjoint reading of Section 65 of the PMLA, 2002 along
with Sections 4 and 5 of the CrPC, 1973 leaves no room
for doubt on the precedence of the former over the latter
when it comes to investigation."
In para 88 thereof, summation of law as declared by
Supreme Court is as under;
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" 88. SUMMATION OF LAW:
i. When an arrestee is forwarded to the jurisdictional
Magistrate under Section 19(3) of the PMLA, 2002 no writ
of Habeus Corpus would lie. Any plea of illegal arrest is to
be made before such Magistrate since custody becomes
judicial.
ii. Any non-compliance of the mandate of Section 19
of the PMLA, 2002 would enure to the benefit of the
person arrested. For such noncompliance, the Competent
Court shall have the power to initiate action under
Section 62 of the PMLA, 2002.
iii. An order of remand has to be challenged only
before a higher forum as provided under the CrPC, 1973
when it depicts a due application of mind both on merit
and compliance of Section 167(2) of the CrPC, 1973 read
with Section 19 of the PMLA 2002.
iv. Section 41A of the CrPC, 1973 has got no
application to an arrest made under the PMLA 2002.
v. The maximum period of 15 days of police custody
is meant to be applied to the entire period of
investigation - 60 or 90 days, as a whole.
vi. The words "such custody" occurring in Section
167(2) of the CrPC, 1973 would include not only a police
custody but also that of other investigating agencies.
vii. The word "custody" under Section 167(2) of the
CrPC, 1973 shall mean actual custody.
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viii. Curtailment of 15 days of police custody by any
extraneous circumstances, act of God, an order of Court
not being the handy work of investigating agency would
not act as a restriction.
ix. Section 167 of the CrPC, 1973 is a bridge between
liberty and investigation performing a fine balancing act.
x. The decision of this Court in Anupam J. Kulkarni
(supra), as followed subsequently requires
reconsideration by a reference to a larger Bench.
In that view of the matter also, this petition requires
rejection.
7. In view of the aforesaid discussion, the successive writ of
habeas corpus filed by the petitioner is required to be rejected
and it is hereby rejected. Rule is discharged.
Interim-order passed by this Court dated 03.08.2015,
ordering release of the petitioner on bail, stands vacated.
Sd/-
(UMESH A. TRIVEDI, J.)
Sd/-
(M. K. THAKKER, J.)
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At this stage, after pronouncement of the judgment,
Mr. Chetan K. Pandya, learned advocate for the petitioner,
prays for stay of the present judgment for a period of 4 weeks,
or in the alternative, time to surrender be granted for a period
of 4 weeks, as he is on bail by way of an interim order by order
dated 03.08.2015.
Having considered the request, since our judgment is
based on decisions of the Supreme Court determining the
issues much earlier as also recent decision where also the
learned Counsel for the petitioner appears and raised very
similar ground before the Supreme Court, which has been
repelled by the Supreme Court, the present judgment need not
be stayed. However, since the petitioner is on bail by way of
order dated 03.08.2015, we deem it fit to grant him time to
surrender for a period of two (02) weeks from today.
Sd/-
(UMESH A. TRIVEDI, J.)
Sd/-
(M. K. THAKKER, J.)
Raj
