Madras High Court
Megala vs The State Represented By on 14 June, 2023
H.C.P.No.1021 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.06.2023
PRONOUNCED ON : 04.07.2023
CORAM:
THE HON’BLE MRS.JUSTICE J. NISHA BANU
AND
THE HON’BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
HABEAS CORPUS PETITION NO.1021 OF 2023
and H.C.M.P. in U.S.R.No.4735 of 2023
Megala .. Petitioner
Versus
1. The State represented by
Deputy Director,
Directorate of Enforcement,
Chennai
2. The State represented by
Assistant Director,
Directorate of Enforcement,
Chennai .. Respondents
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H.C.P.No.1021 of 2023
PRAYER: Petition filed under Article 226 of the Constitution of India
praying for a direction to the respondents herein to produce the body of the
detenu by name Shri V. Senthil Balaji, S/o Velusamy, aged about 48 years
before this Court and set him at liberty.
For Petitioner : Mr. Mukul Rohatgi, Senior Advocate
Mr. N.R.Elango, Senior Advocate
For Mr.N. Bharanikumar
For Respondents : Mr. Tushar Mehta,
Solicitor General of India,
Assisted by Mr.Zoheb Hossain,
Special Counsel, ED and
Mr.A.R.L. Sundaresan,
Addl. Solicitor General of India
Assisted by Mr.N.Ramesh, SPP-ED
******
ORDER
J.NISHA BANU J.
1) This Habeas Corpus Petition is filed under Article 226 of the
Constitution of India praying to issue a Writ directing the respondents to
produce the body of the detenu Shri V.Senthil Balaji, S/o Velusamy aged
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H.C.P.No.1021 of 2023
about 48 years before this Court and set him free.
1.2) The petitioner is the wife of the detenu in CC Nos.19, 24 &25 of 2021
on the file of the Learned Additional Special Court against MP/MLA for
offences under Sec 406, 409 420, 506 (1) read with Sec 34 of the Indian
Penal Code.
1.3) The allegation against the detenu is that, during 2014, while officiating
as a Transport Minister in the Government of Tamil Nadu, he had obtained
money from third parties promising jobs in the Transport Department and
thereafter cheated them. On the basis of the said offences, a case is now
registered by the Enforcement Directorate under Sec 4 of the PMLA, 2002
and he was arrested at about 1.30 AM on 14.06.2023.
1.4) The petitioner complains that Notice under Sec 41-A CrPC was not
issued to him and the grounds of arrest was not informed to him at the time
of arrest and he was not permitted to avail the right to consent a legal
counsel in violation of Article 22 (1) of the Constitution of India
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H.C.P.No.1021 of 2023
necessitating this Petition.
1.5) The petitioner alleges that the Officers descended into his official house
of the detenu without notice at about 7.30 AM on 13.06.2023 and started
interrogating him for about 16 hours without proper food and water,
manhandled and during the proceeding he fell sick, suffered severe chest
pain and breathing trouble and he was admitted to the Tamil Nadu
Government Multi Super speciality hospital in the ICU and treated as
inpatient.
1.6) The petitioner submits that after the arrest, for taking the medical
fitness certificate at the hospital at 2.10 AM for the purpose of remand, the
doctors upon examining him found him to have Tachycardia with
Acceleration.
1.7) The petitioner alleges that the detenu was illegally detained in his
house and not allowed to meet any of his relatives, friends and advocates. It
is alleged that despite giving full cooperation for the enquiries conducted by
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H.C.P.No.1021 of 2023
the officers, they had detained him without observing the due process of
law.
1.8) The petitioner alleges that the detenu was arrested at about 1.30AM on
14.06.2023 and she got to know of it only when the electronic media flashed
the news that he was arrested.
1.9) The petitioner submits that under section 4 of the PMLA, 2002, the
maximum punishment is seven years and therefore the provisions of Sec 41
A of Cr.P.C. is attracted.
1.10) The petitioner submits that since the grounds of arrest was not
informed to the detenu, the factum of arrest was not informed to his
relatives, no notice under Sec 41 A of CrPC was issued to the detenu prior
to his arrest, search person did not sign the sign the statement before taking
the detenu into custody and no signature obtained in the arrest form, the
arrest and detention is illegal and unconstitutional.
1.11) The petitioner submits that Sec 60 A of the Cr.P.C mandates that no
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arrests shall be made except as provided under this code.
1.12) The petitioner submits that the actions of the respondents is politically
motivated. It submits that the respondents which is one of the agency of the
Union Government is used to defame and demoralise the detenu who is a
successful minister in the Government of Tamil Nadu. She submits that the
present action is also to bring disrepute to the government of Tamil Nadu
due to political malafides.
1.13) The petitioner submits that if the detenu is removed from the care of
the hospital, or sent to judicial custody, his life would be put to grave
prejudice that can not be reversed and that they have no effective alternative
or efficacious remedy and therefore have no option except to invoke the
extra ordinary jurisdiction of this court under Article 226 of the Constitution
of India.
2. Counter Affidavit of the 1st Respondent:-
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2.1) The first respondent submits that the Habeas Corpus Petition is not
maintainable in law and on facts as the alleged detenu can, by no stretch of
imagination, be considered as in illegal detention as he is in Judicial
Custody pursuant to an order of Remand passed by the Learned Special
Court for PMLA cases by an order dated 14.6.2023.
2.2) The 1st Respondent submits that the Central Crime Branch, Chennai,
had invoked the provisions of Indian Penal Code (IPC) and Prevention of
Corruption Act (PC Act), which are Scheduled Offences to Prevention of
Money Laundering Act (PMLA). As it appeared prima facie that
Sh. V.Senthil Balaji & ors had acquired proceeds of crime as defined u/s.
2(1)(u), 2(1)(v) and 3 of PMLA, by commission of scheduled offence, an
Enforcement Case Information Report (ECIR) bearing No.
ECIR/MDSZO/21/2021 dated 29.07.2021 was recorded by the Respondent
Department and investigation under the provisions of PMLA was initiated.
2.3) The first respondent submits that based on the reasons to believe that
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H.C.P.No.1021 of 2023
Sh. V Senthil Balaji had committed the offence of money laundering and
that he has been in the possession of proceeds of crime involved in money
laundering and also the records related to money laundering, Search
operations under Section 17(1) of the PMLA, 2002 were carried out at the
premises of Sh. V Senthil Balaji and others on 13.06.2023. By virtue of
section 17(2) of the PMLA, the details of search and seizure were forwarded
to the Hon'ble Adjudicating Authority (PMLA), New Delhi immediately.
During search, he was not detained as alleged. He was present at his official
residence during search.
2.4) The 1st respondent submits that as stated above, after completion of
search proceedings on 13.06.2023, the Summons u/s 50(2) of PMLA was
issued and communicated to Sh. V Senthil Balaji but he refused to sign and
receive it. He started behaving in intimidating manner, shouted, and yelled
at the officer that he is a sitting minister in the State. With no other option,
in the presence of two witnesses, the Respondent attempted to record the
statement of Sh. V Senthil Balaji on 14.06.2023, but he has not responded to
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any of the questions posed. Therefore, he has been completely non
cooperative during the summon proceedings.
2.5) The 1st respondent submits that the alleged transactions and the
materials gathered during the investigation including the statements given
by some accused/victims/witnesses clearly point out the commission of
offence of money laundering. There was neither justification nor evidence
to show that the source of huge cash deposits is from his genuine income.
Furthermore, the accused is still likely to destroy material evidences,
material objects etc. and influence the witnesses which will frustrate the
proceedings under PMLA.
2.6) The 1st respondent submits that in view of the above and considering
the seriousness and gravity of the matter, in exercise of the powers
conferred u/s 19(1) of the PMLA, 2002, the Respondent and the
Investigating Officer in this case, on the basis of material in possession, had
reasons to believe that Sh. V. Senthil Balaji, is guilty of the offence of
Money Laundering u/s. 3 of the PMLA, 2002, punishable u/s. 4 of the
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PMLA, 2002 and thus arrested him on 14.06.2023 at about 1.39 am under
the provisions of section 19(1) of the PMLA, 2002 r/w Rule 6 of the PMLA
(The Forms and Manner of Forwarding a Copy of Order of Arrest of a
Person Along With The Material To The Adjudicating Authority and Its
Period of Retention) Rules, 2005.
Communication of information of arrest to his relatives:
2.7) The 1st respondent submits that at the time of arrest he was informed of
the grounds of his arrest and the grounds of arrest were specifically read
over to him but he has refused to acknowledge and refused to sign.
Therefore, the arrest order/memo was executed in the presence of two
independent witnesses. While arresting Sh. V Senthil Balaji, the guidelines
laid down by the Hon'ble Apex Court in the case of DK Basu were fully
complied without any omission and also scrupulously followed the
ingredients of the Article 22 of Constitution of India.
2.8) The 1st respondent submits that, immediately after the arrest 1.39am,
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the Respondent had duly complied with the Constitutional requirements
such as intimation of grounds of arrest to the Petitioner's husband and
intimation of arrest to the Petitioner herein as well. There were no relatives
of detenu staying at the premises. It is said relatives of detenu were at Karur
and the detenu alone was staying at his official residence on the given day
However, the Respondent had duly attempted to convey the information
arrest of her husband over available contact numbers, viz., phone call Mr.
Ashok Kumar, brother of Mr. Senthil Balaji & Mrs. Nirmala, Sister-in law
of Mr. Senthil Balaji at about 1.41am, but efforts went futile as they failed
to respond to the call. Further, information of arrest was conveyed through
text message to Mr. Ashok Kumar, brother of Mr. Senthil Balaji at about
1.44 am and finally information was even conveyed to (i) the Petitioner
herein, (ii) Mr.Ashok Kumar and (ii) Mr. Sathish Kumar. Chartered
Accountant of Mr. Senthil Balaji on the authenticated Email Id available on
the records at about 8.12 am. It is pertinent to note that the Petitioner has
not disputed on the same. Thus, it is evident that the Respondent has taken
due care and steps in complying with the procedure established under law at
the time of arrest.
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2.9) The Respondent further places reliance on the Order dated 16.06.2023
of the Ld. Principal Sessions Judge, Chennai, dismissing the bail petition, in
which duly records that,
“12: The learned senior counsel who appeared for the
accused would also submit that intimation has not been
given by the respondent to the relative of the accused to
the effect of arrest of the accused and also the grounds of
arrest The relatives of the accused are not available at the
place of arrest and it is not disputed. The respondent
attempted to intimate the arrest of the accused and the
Grounds of arrest over phone to the wife and brother of
the accused, but they did not pick the phone calls.
Therefore, intimation was given through SMS and Emails
of the wife and brother of the accused and the prove the
same, copies of the call, SMS history and computer-
generated Email copy has been produced before this
court."
Therefore, the contention of the Petitioner that the Grounds of Arrest
was not informed to the relatives of the arrestee is false and bereft of merits
and are liable to rejected in limine.
Non-applicability of Section 41A of Cr PC in respect of arrest made
under Section 19 of PMLA
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H.C.P.No.1021 of 2023
2.10) The 1st respondent submits that Sec. 41, 41A, 50A and 61A of Cr.P.C.
will not be applicable to the present case as PMLA is a special enactment
which contains provisions for Arrest, and PMLA has an overriding effect as
against any other law for the time being in force. The same has been
considered by the Hon'ble Court in Vijay Madanlal Choudhary & Ors. vs.
Union of India & Ors. 2022 SCC OnLine SC 929. In the said judgment
arguments were advanced on the side of the petitioners/accused that section
19 of PMLA was violative of Article 21 and 22 of the Constitution of India
as there was no mandate to comply with the mandatory requirements under
the Code of Criminal Procedure was negatived by the Hon'ble Supreme
Court. The Hon'ble 3 Judges Bench held that section 19 of PMLA was not
unconstitutional and had all inbuilt safeguards and procedures which
comply with Article 22 of the Constitution of India. In para 325, the Hon'ble
3 Judges Bench has categorically held provisions of Criminal Procedure
Code are not comparable to the provisions of PMLA and PMLA stands on a
different footing. In the light of the said judgment, the argument that the
provisions of the Criminal Procedure Code have not been followed before
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H.C.P.No.1021 of 2023
effecting arrest is misconceived and is untenable, that too in a Habeas
Corpus Petition and the Habeas Corpus Petition is therefore not
maintainable and deserves to be dismissed. Further, the Hon'ble 3 Judges
Bench of Hon'ble Supreme Court in Vijay Madanlal Choudhary & Ors. vs.
Union of India & Ors. 2022 SCC OnLine 929 at Paras 322-326 has
reiterated that Section 19 has in-built safeguards. The relevant extract is as
under.
"325. The safeguards provided in the 2002 Act and the
preconditions to be fulfilled by the authorised officer before
effecting arrest, as contained in Section 19 of the 2002 Act,
are equally stringent and of higher standard. Those
safeguards ensure that the authorised officers do not act
arbitrarily, but make them accountable for their judgment
about the necessity to arrest any person as being involved in
the commission of offence of money-laundering even before
filing of the complaint before the Special Court under Section
44(1)(b) of the 2002 Act in that regard. If the action of the
authorised officer is found to be vexatious he can be
proceeded with and inflicted with punishment specified under
section 62 of 2002 Act. The safe guards to be adhered to by
the jurisdictional police officer before effecting arrest as
stipulated in the 1973 code, are certainly not comparable.
Suffice it to observe that this power has been given to the
high-ranking officials with further conditions to ensure that
there is objectivity and their own accountability in resorting
to arrest of a person even before a formal complaint is filed
under section 44(1)(b) of the 2002 Act.
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H.C.P.No.1021 of 2023
*326. Considering the above, we have no hesitation in
upholding the validity of Section 19 of the 2002 Act. We reject
the grounds pressed into service to declare Section 19 of the
2002 Act as unconstitutional On the other hand, we hold that
such a provision has reasonable nexus with the purposes and
objects sought to be achieved by the 2002 Act of prevention of
money-laundering and confiscation of proceeds of crime
involved in money-laundering, including to prosecute persons
involved in the process or activity connected with the
proceeds of crime so as to ensure that the proceeds of crime
are not dealt with in any manner which may result in
frustrating any proceedings relating to confiscation thereof”
2.11) The 1st respondent submits that the Petitioner's husband Mr. Senthil
Balaji, on 14.06.2023, filed a petition for Bail and also a petition objecting
to the remand, before the Ld. Principal Sessions Judge, Chennai. The
learned Special Judge was pleased to dismiss the said petition objecting
remand on 14.6.2023 as infructuous as the accused was already remanded to
Judicial custody. After hearing, the Bail petition was dismissed by the Ld.
Principal Sessions Judge vide its order dated 16.06.2023 holding as follows;
“11………...Now, the court has to consider that whether
the Investigating Agency has fulfilled the conditions as
per Sec. 19 of PMLA or not? Sec. 19 of the PMLA
requires certain conditions to be fulfilled prior to the
arrest. In particular, the authorised officer on the basis of
materials in his possession has to record the reasons to
believe in writing in the File. The respondent has
complied the said condition by recording his reason to
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belief in writing and it is available in File and a copy of
the same has been produced before this court. Proof has
also been produced to show that the Deputy Director of
Enforcement Directorate has been authorised to
investigate the matter. Another aspect of Sec. 19 of PMLA
is the communication of the grounds of arrest to the
accused and a mere communication of grounds of arrest
would not suffice and the authorised officer has to record
his reasons to believe in writing and it has to be
communicated to the detenu. But, the accused in the
present case Sh. V.Senthil Balaji was said to have refused
to receive the Grounds of Arrest and also refused to sign.
As he is not co-operating for the same, the arrest memo
was said to have been executed in the presence of two
witnesses and the same has been recorded by the
authorised officer in the Grounds of Arrest and the two
witnesses have also signed in the arrest memo. In these
circumstances, the non-communication of Grounds of
Arrest to the accused is not considered as a violation.
From the above discussion, the court is of the opinion
that the respondent /complainant is not expected to follow
the procedure u/s 41-A Cr.P.C and on the other hand,
they are expected to fulfill the conditions as required u/s
19 of PMLA and it has been followed".
2.12) In this case, summons for his appearance were issued long back on
17.3.2022, 1.4.2022 and 29.4.2022 and he is aware of the registration of
case, and is also aware of the facts of the case and the allegations against
him, however he did not appear. He chose to challenge the summons by way
of a Writ Petition in WP No. 18213/2022 in this Hon'ble Court and by order
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H.C.P.No.1021 of 2023
dated 1.9.2022 the Respondents/ED were refrained from proceeding any
further till the disposal of (1)Crl O P No.15122/2021, (2) Crl RC
No.224/2021 and (3) SLP (Crl) 3941/2022. The said order dated 1.9.2022
was set aside by the Hon'ble Supreme Court on 16.5.2023 in SLP Cri No.
12779 to 12781 of 2022 and the Respondent was permitted to proceed
further. Under such circumstances when the Respondent continued with the
investigation there was total non-cooperation from the accused Mr. Senthil
Balaji and further, his arrest was "required" and hence the arrest was
effected. As such there is no violation of any LAW.
Habeas Corpus Petition is Not maintainable once remand order is
passed by the competent court
2.13) The husband of the Petitioner herein, i.e., Mr. V. Senthil Balaji was
arrested after compliance with the requirements of Section 19 of the PMLA
on 14.06.2023 and the Ld. Principal Sessions Judge, Chennai, Special
Court, PMLA by way of a judicial order dated 14.06.2023, remanded him to
custody till 28.06.2023 after being satisfied with the compliance of the legal
requirements. As such the alleged detenu is in lawful Judicial Custody. The
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same cannot be challenged at this stage by way of a Habeas Corpus Petition.
The Respondent places reliance on the Judgment of the Hon'ble Supreme
Court in the case of Serious Fraud Investigation Office vs. Rahul Modi
(2019) 5 SCC 266, where it was held as follows:
“21. The act of directing remand of an accused is thus
held to be a judicial function and the challenge to the
order of remand is not to be entertained in a habeas
corpus petition. The first question posed by the High
Court, thus, stands answered. In the present case, as on
the date when the matter was considered by the High
Court and the order was passed by it, not only were there
orders of remand passed by the Judicial Magistrate as
well as the Special Court, Gurugram but there was also an
order of extension passed by the Central Government on
14-12-2018. The legality, validity and correctness of the
order or remand could have been challenged by the
original writ petitioners by filing appropriate
proceedings. However, they did not raise such challenge
before the competent appellate or revisional forum. The
orders of remand passed by the Judicial Magistrate and
the Special Court, Gurugram had dealt with merits of the
matter and whether continued detention of the accused
was justified or not. After going into the relevant issues on
merits, the accused were remanded to further police
custody. These orders were not put in challenge before the
High Court. It was, therefore, not open to the High Court
to entertain challenge with regard to correctness of those
orders. The High Court, however, considered the matter
from the standpoint whether the initial order of arrest
itself was valid or not and found that such legality could
not be sanctified by subsequent order of remand.
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Principally, the issue which was raised before the High
Court was whether the arrest could be effected after
period of investigation, as stipulated in the said order
dated 20-6-2018 had come to an end. The supplementary
issue was the effect of extension of time as granted on 14-
12-2018. It is true that the arrest was effected when the
period had expired but by the time the High Court
entertained the petition, there was an order of extension
passed by the Central Government on 14-12-2018.
Additionally, there were judicial orders passed by the
Judicial Magistrate as well as the Special Court,
Gurugram, remanding the accused to custody. If we go
purely by the law laid down by this Court with regard to
exercise of jurisdiction in respect of habeas corpus
petition, the High Court was not justified in entertaining
the petition and passing the order".
2.14) Further reference is drawn to the case of a Five Judge Constitution
Bench of the Hon'ble Supreme Court in Sanjay Dutt v. State through CBI
Bombay (II), (1994) 5 SCC 410, has held as under:
48...It is settled by Constitution Bench decisions that a p
seeking the writ of habeas corpus on the ground of
absence of a valid order of remand or detention of the
accused, has to be dismissed, if on the date of return of
the rule, the custody or detention is on the basis of a valid
order. (See Naranjan Singh Nathawan v. State of Punjab
(1952) 1 SCC 118: 1952 SCR 395: AIR 1952 SC 106:
1952 Cri LJ 656]; Ram Narayan Singh v. State of Delhi
(1953 SCR 652: AIR 1953 SC 277: 1953 Cri LJ 1113 and
A.K. Gopalan v. Government of India [(1966) 2 SCR 427:
AIR 1966 SC 816:1966 Cri LJ 602].)".
Exclusion of the Period of treatment undergone by the detenu from the
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period of custodial interrogation.
2.15) The 1st respondent submits that the Ld. Principal Sessions Judge,
Chennai was pleased to grant ED custody of Mr. V. Senthil Balaji, vide its
order dated 16.06.2023in Crl.M.P.No. 13572 of 2023 for 8 days from
16.06.2023 to 23.06.2023,with the following conditions.
i. "The Deputy Director of Enforcement Directorate
shall not remove the accused from the Kaveri Hospital,
who has been admitted for treatment.
ii. The Deputy Director of Enforcement Directorate
shall interrogate the accused at the hospital by taking
into consideration of his ailments and the treatment
given to him in the hospital after obtaining necessary
opinion from the team of Doctors, who are giving
treatment to him about his fitness for interrogation
iii. The Deputy Director of Enforcement Directorate
interrogate the accused without any hindrance to the
health conditions of the accused and also the treatment
provided to him..."
2.16) The 1st respondent submits that accordingly. immediately by an e-mail
communication a medical opinion was sought and obtained from the team of
doctors of Kaveri Hospital, giving treatment to Sh. V Senthil Balaji. In their
opinion medical dated 17 June 2023, 07.45 am., the doctors have opined as
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follows,
“...He is presently hemodynamically stable and is under
continuous cardiac monitoring in the ICU, He is advised
bed rest and to avoid stressful conditions which might
precipitate as adverse cardiac event.
If he needs interrogation, it must be done under
continuous cardiac monitoring in the ICU under
medical supervision. The interrogation session must be
interrupted with adequate rest to avoid any adverse
health outcome. If there are any changes in his health
condition, the interrogation must be stopped."
2.17) The 1st respondent submits that considering the opinion of doctors
about the condition of accused, in the light of the conditions imposed for
examination /interrogation of the accused by Ld. Principal Sessions Judge,
Chennai, it becomes impossible for the Respondent to conduct any
meaningful interrogation or take ED custody of the accused for
interrogation and hence ED custody could not be taken and custody order
could not be implemented/enforced. Instantly, the Respondent had filed a
Memo dated 17.06.2023 before the Ld. Ld. Principal Sessions Judge,
Chennai with the following prayer: -
"Therefore, it is respectfully prayed that this Hon'ble
Court may be pleased to pass an order, to the effect that
though the accused was remanded to custody, as the
accused was hospitalised of his choice immediately from
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H.C.P.No.1021 of 2023
1st day of remand and undergoing treatment, he is to be
deemed not under effective custody so that the first 15
days custody period does not come in the way of right of
the investigation agency for effective investigation and
interrogation and thus render complete justice".
2.18) The 1st respondent submits that the alleged detenu was arrested on
14.6.2023 at 1.39 am and since he complained of chest-pain he was taken to
Omandurar Government Super Speciality Hospital and the Doctors after
examining him opined that he should be admitted. We were informed on
14.6.2023 that an angiogram was performed and it was reported that there
were blocks. On 15.6.2023 the alleged detenu continued in Omandurar
Hospital in ICU. On 15.6.2023 pursuant to the orders of this Hon'ble Court
in this Habeas Corpus Petition, the alleged detenu was shifted on his request
to the private hospital namely, Kauvery Hospital.
2.19) The 1st respondent submits that ED Custody was ordered by the Ld
Sessions Judge on 16.6.2023 in the evening at about 6 pm. From 16.6.2023
till date the alleged detenu is in Kauvery Hospital. The Hospital has given a
press release that he has undergone "Beating Heart Coronary Artery By-pass
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H.C.P.No.1021 of 2023
surgery on 21.6.2023. I submit that from 14.6.2023 till date no effective
time was available for the Investigating agency to exercise its right for
custody as per Sec 167 of the Code and hence it should be deemed that the
accused is not under any effective custody so that the first 15 days custody
period does not come in the way of the right of the investigating agency for
effective investigation and interrogation of the accused. Hence this Hon'ble
High Court may be pleased to exclude the period of treatment to be
undergone in the hospital from the period of custody as interrogation and
investigation would be rendered meaningless during hospitalization.
Reliance in this regard is placed on the recent decision of Hon'ble Supreme
Court in the case of CBI v. Vikas Mishra, 2023 SCC Online SC 377,
wherein in a similar fact situation, this Hon'ble Court was pleased to hold
that period spent in a private hospital would be excluded from the period of
custody
“21. No accused can be permitted to play with the
investigation and/or the court's process. No accused can be
permitted to frustrate the judicial process by his conduct. It
cannot be disputed that the right of custodial
interrogation/investigation is also a very important right in
favour of the investigating agency to unearth the truth,
which the accused has purposely and successfully tried to
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frustrate. Therefore, by not permitting the CBI to have the
police custody interrogation for the remainder period of
seven days, it will be giving a premium to an accused who
has been successful in frustrating the judicial process".
2.20) The 1st respondent further submits that as the order of remand was not
put to challenge by the Petitioner this habeas corpus petition is not
maintainable. There was no pleading regarding the ground(s) on which the
order of remand was bad. Further, the order of remand was not even placed
on record. Considering the above well settled legal principle that the
validity of arrest cannot be challenged in a habeas corpus petition, once the
person arrested has been validly remanded to custody. When this Hon'ble
Court entertained the habeas corpus petition Mr. V. Senthil Balaji was
already been duly remanded to custody by the Ld. Special Court, hence, the
petition is liable to be dismissed at the outset as not maintainable.
2.21) Without prejudice to the question of maintainability of the Habeas
Corpus Petition this respondent submits that the accused Mr Senthil Balaji
was informed of his Grounds of arrest, his close relatives were informed of
the arrest as stated above, Mr Senthil Balaji refused to receive and
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acknowledge the arrest order and the arrest memo. All the contentions in
para 14 of the affidavit are denied as false and incorrect. The respondent
stoutly denies that the alleged detenu was manhandled by the respondent
and its officers. He was not illegally detained from 7 am on 13.6.2023 to 2
am on 14.6.2023 as alleged. He was present during the search in his
residence. He was not detained as alleged. Contentions in para 15 are
stoutly denied as false. All other submissions, assertions and contentions by
the petitioner in the affidavit filed in support of the Habeas Corpus petition,
contrary to the facts set out in this Counter are denied as false and incorrect.
2.22) The 1st respondent submits that the Respondent herein approached the
Hon'ble Supreme Court by way of a Special Leave Petitions in SLP (Crl)
No.7437 of 2023 and SLP (Crl) 7460 of 2023, wherein the Hon'ble Division
Bench of Supreme Court after hearing the both the sides at length, has
posted the matter on 04.07.2023 for further hearing vide its order dated
21.06.2023. Copy of the order dated 21.6.2023 is filed in the typed set of
papers.
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3) Additional grounds of Petition filed by the petitioner:-
3.1) After craving leave for filing the additional submissions the petitioner
submits that when the above-captioned Habeas Corpus Petition was taken
up for hearing on 15.06.2023, this Hon'ble High Court of Madras
(hereinafter, "this Hon'ble Court") was pleased to pass an order on
15.06.2023 containing certain directions wherein this Petitioner was
permitted to file a copy of the remand order and to raise any additional
grounds. I, therefore, crave leave of this Hon'ble Court to treat this Affidavit
of additional grounds as part and parcel of the affidavit filed along with the
above-captioned Habeas Corpus Petition.
3.2) The petitioner submits that that the detenu was one of the Members of
the 15th Legislative Assembly of Tamil Nadu, returned as a candidate of the
AIADMK party from Aravakurichi Assembly Constituency in the year
2016. I further submit that he was one of the 18 MLAS disqualified at the
instance of Thiru. Edapaddi.K.Palanisamy, the then Chief Minister. I further
submit that due to intra party disputes, he quit the party and joined the
AIADMK faction AMMK in the year 2017 and thereafter the Dravida
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Munnetra Kazhagam on December 2018. Out of political vengeance, the
then AIADMK Government, led by Edappadi K. Palaniswamy, falsely
implicated him in the cases in which the investigations were conducted from
the year 2017; and filed a final report in Calendar Case numbers 19, 24 &
25 of 2021, which are pending on the file of Additional Special Court for
Trial Cases of M.P. and M.L.A. The detenu is defending himself in those
cases in the manner known to law.
3.3) The petitioner submits that in this background the detenu contested
2021 elections from Karur Constituency and won with a margin of around
12,400 votes. I further submit that he was nominated by the DMK party as
in-charge of western region of Tamil Nadu. I submit Thiru.K. Annamalai
who is the State president of Bharathiya Janata Party, which is the ruling
party in the Union Government, has always nursed a grudge against the
detenu as he perceives him to be a direct threat in the political arena. It is
part of public record that Thiru K. Annamalai has been speaking in public
platforms and the media, as early as August 2022, that the detenu will be
proceeded against by the central law enforcement agencies.
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3.4) The petitioner submits that the detenu was detained between
13.06.2023 @ 07.45 AM to 14.06.2023 @ 02.00 AM by the Enforcement
Directorate with the help of Rapid Action Force (Unit of Central Reserve
Police Force) of the Union Government. The detenu was so detained in his
official residence. His friends and relatives, who were present there, were
driven out of the house and the main gates were closed and heavily guarded
by the Rapid Action Force. No body knew what was happening inside the
house from 13.06.2023 @ 07.45 AM to 14.06.2023 02.00 AM. At around
2.30 AM, he was taken to Government Omandhurar General Hospital,
Chennai and was admitted by the Respondent themselves, due to complaints
of chest pain.
3.5) The petitioner further submits that as the detenu was arrested in
violation of sections 41, 41A, 50 and 50A of the Code of Criminal
Procedure 1973, Sections 19 of the Prevention of Money Laundering Act
and in violation of Articles 21 and 22(1) of the Constitution of India, I
moved this Hon'ble Court at 10.30 AM with available facts on 14.06.2023
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and filed the above-captioned Habeas Corpus Petition. When the Habeas
Corpus Petition was taken up a Hon'ble Division Bench of this Hon'ble
Court at 02.15 PM on 14.06.2023, one of the Hon'ble judges recused from
the case and hence the matter was transferred to another Hon'ble Bench.
Due to administrative reasons and procedures to place the matter before
another Hon'ble Bench, the matter came to be heard only on 15.06.2023.
The Order of Judicial Custody Passed On 14.06.2023 Is Illegal
3.6) The petitioner submits that in the meanwhile on 14.06.2023, the
Learned Principal Sessions Judge/Special Judge PMLA cases at the request
of the Respondent visited Omandurar Government General Hospital,
Chennai and remanded the detenu to Judicial Custody till 28.06.2023. At
the time of remand, the detenu explained the ill treatment meted out by him
at the hands of the Respondent and also that he was physically manhandled
by the Respondent. He also represented that he was not informed about the
grounds of arrest. A petition (this Petition was later numbered as
Crl.M.P.No. 13521 of 2023) was also filed on his behalf to reject the request
for remand. However, without applying her mind judiciously, the Learned
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Principal Sessions Judge dismissed the petition. In fact, when the petition
was presented to her in the Hospital, the Learned Principal Sessions Judge
directed the counsel for the detenu to argue the objection for the remand on
the same day evening i.e., on 14.06.2023 in open court. However, on
returning to the court, Learned Principal Sessions Judge rejected the petition
filed by the detenu as infructuous. In view of this illegality, the subsequent
detention of the detenu is illegal. I further submit that the order of the
learned Principal Sessions Judge reads as follows:
"since the accused has already been remanded to
Judicial Custody, this Petition for rejection of
remand doesn't arise. Hence this Petition is
dismissed as infructous"
3.7) The petitioner submits that when the counsel for the detenu
submitted before the Learned Principal Sessions Judge that Section 50 of
Cr.P.C and Article 22(1) of the Constitution of India were not followed, the
Special Public Prosecutor appearing for the Respondent replied that the
detenu denied to acknowledge the arrest memo. This submission was
accepted by the Learned Principal Sessions Judge mechanically and without
any examination.
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3.8) The petitioner submits that intimation of arrest to the family members
as per section 50A of Cr.P.C is mandatory. Non-compliance will make the
arrest as illegal as per section 60A of the Cr.P.C. The claim of the
Respondent that SMS and mail services were pressed in to service is
unknown to law; and cannot be accepted a valid and lawful means of
service.
3.9) The petitioner submits that Section 19(1) of Prevention of Money
Laundering Act 2002 ("PMLA 2002") reads as follows:
"If the Director, Deputy Director, Assistant
Director or any other officer authorised in this
behalf by the Central Government by general or
special order, has on the basis of material in his
possession, reason to believe (the reason for such
belief to be recorded in writing) that any person has
been guilty of an offence punishable under this Act,
he may arrest such person and shall, as soon as may
be, inform him of the grounds for such arrest."
3.10) The petitioner submits that a conjoined reading of Article 22(1) of
the Constitution of India and Section 19(1) of PMLA 2002 would go to
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show that none of them are inconsistent with each other. Hence, the right to
be informed of the grounds of arrest is both a fundamental and a statutory
right. I further submit that violation of Article 22(1) of the Constitution of
India amounts of violation of fundamental right and hence, a Habeas Corpus
Petition under Article 226 of the Constitution of India is maintainable and
permissible. I further submit that violation of statutory provisions like
Section 50(1) of Cr.P.C and Section 19(1) of PMLA 2002 are violation of
fundamental right guaranteed under Article 21 of Constitution of India.
Since those two provisions are the procedure established by law, depriving
the detenu of his personal liberty in violation of them is amenable to
exercise of jurisdiction under Habeas Corpus.
3.11) The petitioner submits that the Hon'ble Supreme Court has held the
right under Article 22 (1) is an absolute right and the same cannot be
deviated by any authority. This was followed by this Hon'ble Court in 1988
LW Cr. 503 Selvanathan alias Raghavan vs State and in Guruswamy vs
State reported in 2004 1 LW Cr. 418. The claim of the Respondent is that
the detenu denied to acknowledge the memo of arrest is an afterthought.
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Even admitting that the Respondent attempted to serve the arrest memo and
the same was refused by the detenu, the said arrest memo has contained only
the ECIR/MD and provisions of law. It does not contain the reason of the
arresting officer to believe that the detenu is guilty of the offence and It also
does not provide any grounds for arrest.
3.12) The petitioner submits that the 'grounds of arrest' means and includes
the gist of the offence committed by the detenu, the reasons for the arresting
officer to believe that he has committed that offence, the details of the
Notice issued under section 41A of CrPC or in the alternative by the officer
is dispensing with the issuance of 41A Notice of CrPC. Failure to inform
the above requirements will be a violation of Article 22 (1) of Constitution
of India, Section 19 (1) of PMLA and Section 50 (1) of CrPC. Hence, the
arrest of the detenu is illegal.
3.13) The petitioner submits that Section 19 deals with the power of the
officer of the Enforcement Directorate to arrest a person if reasonable
grounds appear but however, immediately upon the arrest he has to Inform
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the grounds of arrest to the arrestee. This provision is in consonance with
Article 22 (1) of Constitution of India and Section 50 (1) of CrPC. Hence,
the judgments reported in Naranjan Singh Nathawan vs State of Punjab
(1952) 1 SCC 118, Ram Narayan Singh vs State of Delhi AIR 1953 SC
277, In the Madhu Limaye (1969) 1 SCC 292 AND R. Gurusamy Vs State
2004 LW Cri 418 clearly support the case of the detenu.
3.14) The petitioner further submits that the Respondent, on 15.06.2023
when this Habeas Corpus Petition was taken for admission, has submitted
that the provisions of Code of Criminal Procedure are not applicable to the
proceedings under the PMLA 2002. In support of the argument, the
Respondent has relied upon the case of Vijay Madanlal Choudhary vs
Union of India reported in (2023) 12 SCC 1. In this regard, I am advised to
submit that the Hon'ble Supreme Court has not laid down any proposition to
the effect that the provisions of Code of Criminal Procedure are not
applicable to the proceedings under the PMLA 2002. In fact, I submit that
Sections 65 and 71 of PMLA read as follows:
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65. Code of Criminal Procedure, 1973 to apply.
The provisions of the Code of Criminal Procedure,
1973 (2 of 1974) shall apply, insofar as they are not
inconsistent with the provisions of this Act, to arrest,
search and seizure, attachment, confiscation,
investigation, prosecution and all other proceedings
under this Act."
"71. Act to have overriding effect.
The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in
force."
3.15) The petitioner submits that, in this context, it is imperative to read
section 41A of Code of Criminal Procedure Code, which states follows.
"41A. Notice of appearance before police officer.
(1) The police officer shall], in all cases where the
arrest of a person is not required under the
provisions of sub-section (1) of section 41, issue a
notice directing the person against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person, it
shall be the duty of that person to comply with the
terms of the notice.
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(3) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice unless,
for reasons to be recorded, the police officer is of the
opinion that he ought to be arrested."
(4) Where such person, at any time, fails to comply
with the terms of the notice or is unwilling to identify
himself, the police officer may, subject to such orders
as may have been passed by a competent Court in
this behalf, arrest him for the offence mentioned in
the notice."
3.16) The petitioner submits that a reading of Section 65 r/w Section 71 of
PMLA 2002 states that provisions of the Code of Criminal Procedure 1973
shall apply insofar as they are not inconsistent with the provisions of PMLA
2002 to arrest, search, seizure, attachment, confiscation, investigation,
prosecution and all other proceedings under this Act. This proposition has
been upheld by the Hon'ble Supreme Court in Ashok Munilal Jain & Anr
vs Assistant Director (2018) 16 SCC 158.
3.17) The petitioner further submits that the proposition of the provisions
of Cr.P.C are applicable to the proceedings under PMLA 2002 has been
categorically held in Rana Ayyub vs Directorate of Enforcement (2023) 4
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H.C.P.No.1021 of 2023
SCC 357 in which the Hon'ble Supreme Court also considered the decision
in Vijay Madanlal Choudhary case.
3.18) The petitioner submits that for a better under understanding, a
comparative chart of Section 50 of PMLA and Section 41 A of the Code of
Criminal Procedure is produced:
SECTION 50 OF PMLA SECTION 41 A OF THE CODE OF
CRIMINAL PROCEDURE
Powers of authorities regarding 41.A. Notice of appearance before
summons, production of police officer.-
documents and to give evidence,
etc.-
(1) The Director shall, for the (1) The police officer shall], in all
purposes of section 13, have the cases where the arrest of a person is
same powers as are vested in a civil not required under the provisions of
court under the Code of Civil sub-section (1) of section 41, issue a
Procedure, 1908 (5 of 1908) while notice directing the person against
trying a suit in respect of the whom a reasonable complaint has
following matters, namely:- been made, credible or information
a. Discovery and inspection; has been received, or a reasonable
suspicion exists that he has
b. Enforcing the attendance of any committed a cognizable offence, to
officer, including any office of a appear before him or at such other
banking company or a financial place as may be specified in the
institution or a company, and notice.
examining him on oath;
c. compelling the production of (2) Where such a notice is issued to
records; any person, it shall be the duty of
that person to comply with the terms
d. receiving evidence on affidavits;
of the notice.
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SECTION 50 OF PMLA SECTION 41 A OF THE CODE OF
CRIMINAL PROCEDURE
e. issuing commissions for (3) Where such person complies and
examination of witnesses and continues to comply with the notice,
documents; and he shall not be arrested in respect of
f. any other matter which may be the offence referred to in the notice
prescribed. unless, for reasons to be recorded,
the police officer is of the opinion
(2) The Director, Additional that he ought to be arrested.
Director, Joint Director, Deputy (4) Where such person, at any time,
Director or Assistant Director shall fails to comply with the terms of the
have power to summon any person notice or is unwilling to identify
whose attendance he considers himself, the police officer may,
necessary whether to give evidence subject to such orders as may have
or to produce any records during the been passed by a competent Court in
course of any investigation this behalf, arrest him for the offence
proceeding under this Act. mentioned in the notice.
SECTION 50 OF PMLA SECTION 41 A OF THE CODE OF
CRIMINAL PROCEDURE
(3) All the persons so summoned
shall be bound to attend in person or
through authorised agents, as such
officer may direct, and shall be
bound to state the truth upon any
subject respecting which they are
examined or make statements, and
produce such documents as may be
required.
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SECTION 50 OF PMLA SECTION 41 A OF THE CODE OF
CRIMINAL PROCEDURE
(4) Every proceeding under sub-
sections (2) and (3) shall be deemed
to be a judicial proceeding within the
meaning of section 193 and section
228 of the Indian Penal Code, 1860
(45 of 1860).
5) Subject to any rules made in this
behalf by the Central Government,
any officer referred to in sub-section
(2) may impound and retain in his
custody for such period, as he thinks
fit, any records produced before him
in any proceedings under this Act:
Provided that an Assistant Director
or a Deputy Director shall not-
(a)impound any records without
recording his reasons for so doing;
or (b) retain in his custody any such
records for a period exceeding three
months, without obtaining the
previous approval of the Director.
3.19) The petitioner submits that it can be seen that section 41A of CrPC
and section 19 r/w 50 of PMLA are operating on two different fields.
However, they are not inconsistent with one another. I further submit that
section 41A of Cr.P.C is also a procedure established by law and the
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Hon'ble Supreme Court in Satyender Antil case that all investigating
agencies will have to follow the procedure established under Section 41A of
Cr.P.C., and any violations of which are equivalent to violations under
Article 21 of the Constitution of India.
3.20) The petitioner submits that it is undisputed that members of the
Central Reserve Police Force were present from around 1 PM on
14.06.2023 during the search operations conducted by the Respondent. The
legality of the presence of C.R.P.F is a central issue to the events
culminating in the unlawful detention of the detenu on 14.06.2023 and
15.06.2023. It is submitted that the C.R.P.F can only be present in aid to the
civil power, as per Entry 2A in List I and Entry 1 in List II of the Seventh
Schedule to the Constitution of India. As such, C.R.P.F, by virtue of being
under the control of the Union Government, cannot exercise any powers in
lieu of the civil force i.e., state police. I further submit that the presence of
C.R.P.F itself vitiates the entire detention procedure as there was no request
from the civil force to provide any further policing personnel from the
Union Government. There is no law providing for the Respondent to take
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assistance of C.R.P.F nor is it within the duties enumerated for the C.R.P.F
(which is essentially under the Union Ministry of Home Affairs) to provide
assistance for the Respondent authority. Even PMLA 2002 is silent about
any situation where the Respondent is empowered to take the assistance of
C.R.P.F or any other Central policing force. As such, the present C.R.P.F
was unlawful and against the established principles of law.
3.21) The petitioner submits that alternatively, the presence of C.R.P.F
signals the start of detention period; and the detenu was not produced before
the jurisdictional Special Court within 24 hours of this event, as per Section
19 of PMLA 2002, which was not done. In Naga People's Movement of
Human Rights vs Union of India (1998) 2 SCC 109, the Constitution
Bench of the Hon'ble Supreme Court of India has held that even armed
forces can only be deployed in aid of civil power and provisions of Cr.PC
governing search and seizure shall apply over special legislation. According
to paragraph 172 of Vijay Madanlal Choudhry case, the Respondent, who is
an authority under the PMLA 2002 is not a police. As such, this gives rise to
the question around the legality of the Respondent seeking custody of the
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Petitioner. The petition for custody is alien to the PMLA 2002 especially
when the Respondent is empowered under Section 50 of PMLA 2002 to
summon any person for investigation.
The order of the Learned Principal Sessions Judge Granting Police
Custody is Illegal.
3.22) The petitioner submits that the order of Learned Principal Sessions
Judge in Cri.M.P. 13572 of 2023 on 16.06.2023 placing the detenu in the
custody of the Respondent is illegal as this order prima facie proceeds on
the footing that the detenu has not co-operated with the investigation. It is
specifically averred by the investigation officer as noted by the Learned
Principal Sessions Judge in paragraph 15 of the said order as follows:“…
On perusal of the remand report, grounds of arrest
and memo, it would reveal that accused has refused
to sign and receive the summons issued under section
50 of PMLA by the Enforcement officials on
14.06.2023 and said to have started behaving in an
intimidating manner and therefore, he has been
completely non-cooperative during the summons
proceeding. The Ground of Arrest was said to have
been conveyed to Sh.V. Senthil Balaji As he is not co-
operating, Arrest Memo has been executed in the
presence of two witnesses and those witnesses have
also signed in the Arrest Memo."
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3.23) The petitioner submits that however, on the same date, the Learned
Principal Sessions Judge was pleased to dismiss the bail petition in Cri.M.P.
13522 of 2023 at para 5 of the said order noted as follow:
"The learned Senior Counsel appearing for the
Petitioner would submit that the ECIR
No.MDSZO/21/2021 has been registered in the year
2021 and the petitioner/ accused has not been
interrogated and arrested till 14.06.2023. He has co-
operated with the interrogation / investigation from
7.00 a.m. on 13.06.2023 to 2.00 a.m on 14.06.2023.
It is admitted by the respondent/complainant that the
accused has co-operated for Interrogation."
(Emphasis Supplied)
3.24) The petitioner submits that it is not only this oral statement recorded
by the Learned Principal Sessions Judge that the detenu has cooperated with
the investigation. It is admitted that the detenu was In the custody of the
Respondent from 9.30 AM on 13.06.2023 till 1.58 AM on 14.06.2023. From
the Panchanama prepared in the presence of witnesses, the search
proceedings commenced on 8:20 AM on 13.06.2023 and continued till
11:00 PM on 13.06.2023. In that Panchanama, it is noted by the Respondent
as follows:
“…
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Before the actual start of search and after the
conclusion of search, Shri Ritesh Kumar, Assistant
Director, Directorate of Enforcement and said
accompanying officers/ staff offered their personal
search which was politely declined by Shri.V. Senthil
Balaji on both the occasions in our presence."
…
“…
During the course of search, Shri V. Senthil Balaji
gave sworn statement under section 17(1)(f) of
PMLA 2002 in our presence and no threat, coercion
or inducement was used by the officers for getting
the said statement of above said person."
3.25) The petitioner submits that Section 17(1)(f) of PMLA 2002 reads as
follows:
"1. Where the Director or any other officer not below
the rank of Deputy Director authorised by him for
the purposes of this section, on the basis of
information in his possession, has reason to believe
(the reason for such belief to be recorded in writing)
that any person :…
(iv) is in possession of any property related to crime
then subject to the rules made in this behalf, he may
authorise any officer subordinate to him to-/…
(f) examine on oath any person, who is found to be in
possession or control of any record or property, in
respect of all matters relevant for the purposes of
any investigation under this Act."
3.26) The petitioner submits that the order granting police custody on the
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grounds that the detenu was not cooperating with the investigation is
factually incorrect and mechanically passed, and hence, illegal. It is to be
noted that the detenu was under the custody of the Respondent from 9:30
AM till 11 PM on 13.06.2023 as recorded in the Panchanama and
continuously interrogated, excluding the presence of any other person. It is
also to be noted that the claim of the Respondent that when the Arrest
Memo was attempted to be served on the detenu, he refused to receive it, is
falsified from the facts stated in the Panchanama because the Panchanama
informs that the search proceedings were over at 11 PM on 13.06.2023 and
the arrest I was shown only at 1:58 AM on 14.06.2023. What has transpired
between 11 PM on 13.06.2023 and 1:58 AM on 14.06.2023 is not known.
Mere refusal of the notice under Section 19(1) of PMLA 2002 would not
have taken three [3] hours. Hence, the claim of the Respondent stands
falsified.
3.27) The other reasons assigned by the Respondent for seeking police
custody for an investigation which is pending from the year 2021 (and the
predicate offence is from the year 2014) are not sustainable. I further submit
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that the order granting police custody has been passed in a mechanical
manner and therefore not sustainable in law. I further submit that on these
additional grounds also the continued detention of the detenu is per se
illegal and unconstitutional.
3.28) The petitioner submits that the procedure to seek custody under
Section 167 of Cr.P.C, only a police officer is empowered to forward the
detenu / Accused person to a Magistrate and seek custody. As the
authorities under PMLA 2002 are not police, it naturally follows that they
are not empowered to seek police custody under Section 167 of Cr.P.C.
Summons under Section 50 of PMLA 2002 is similar to Section 61
summons under Cr.P.C. Therefore, there is no inconsistency with the
issuance of Section 41A Cr.P.C notice. Hence the detention/remand cannot
be sustained and liable to be set-aside the remand order at the threshold and
set the détenu at liberty forthwith.
3.29) The petitioner submits that Section 19 of PMLA Act 2002 expressly
provides for custody of maximum period of 24 hours of a person arrested by
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an officer authorized to make such arrest. Within the said period the person
so arrested is mandated to be produced before the nearest Magistrate. It may
be noted that there is a conspicuous absence of any provision under PMLA
2002 regarding custody of a person arrested beyond 24 hours. By virtue of
Section 65 of the Act, provisions of Section 167 Cr.P.C. would be
applicable to such arrest made by the authorized officer under PMLA. Since
such authorized officer is not a police officer as held in Vijay Madanlal
Choudhary, the period of custody of such arrested person with the ED
officials cannot be beyond the first 24 hours of arrest.
4) Sur Rejoinder filed by the 1st Respondent:-
4.1) The 1st Respondent submits that it has been categorically established
that the main Habeas Corpus Petition itself is not maintainable in law and
on facts as the detenu is in valid Judicial Custody pursuant to an order of
remand dated 14.6.2003 passed by the competent and jurisdictional Leamed
Special Court for PMLA cases.
4.2) The 1st Respondent submits that after having availed opportunity of
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effective participation every stage of judicial proceeding from remand on
14.6.2013, b proceeding on 14.6.2023, ED Custody proceedings on
14.6.201 15.6.2023 & 16.6.2023, and after being unsuccessful in all, now
this petitioner cannot be heard to raise doubt on the conduct of Lat special
Judge by saying that the two documents, vie, arrest memo" and "grounds of
arrest" were NOT filed on 14.0.2023 and that they were prepared later and
received by the Court on 16.6.2033. These unfounded allegations amount to
contempt of Court.
4.3) The 1st Respondent submits that under the guise of filing Rejoinder,
the petitioner has attempted to widen the scope of the petition and set up a
new case based on imaginary grounds.
4.4) The 1st Respondent submits that he denies the averment in para-1 of
rejoinder affidavit that the remand order was passed by the learned Judge in
the capacity of Principal Sessions Judge and not as a Special Judge for
PMLA cases, though she is invested with the powers of both the courts.
This statement is mischievous. Principal Sessions Court, Chennai is
designated as "Special Court" under sub section (1) of Section 43 and the
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"Special Court" has been empowered to remand the accused arrested under
Section 19 of PMLA. (Copy of the notification is Annexed herewith)
4.5) The 1st Respondent submits that he denies the averment in para-3 of
rejoinder affidavit that since CRP was deployed, it is to be construed as
'detention' in all its legal meaning. This averment has already been replied in
the Additional counter affidavit as to why the Enforcement Directorate was
forced to seek the assistance of CRPF and the same is being adopted herein.
4.6) The 1st Respondent submits that he denies the averment in para-4 of
rejoinder affidavit that a summons under section 50(2) PMLA should
necessarily be served on the person who is "not in detention". I reiterate that
the arrestee was not detained till he was arrested at 1.39 am on 14.6.2023.
Prior to arrest, an attempt was made to serve the summons on the arrestee
which he refused to receive and refused acknowledge. It also to be noted
that out of the 6-summons served on him on earlier occasions, the arrestee
appeared only once but did not produce the required documents and did not
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cooperate with the investigation. Thereafter he sent his auditors when the
summons was issued for personal appearance to record his statements. He
has filed a writ petition challenging the 6th summons. Thus, on all the
earlier summons as well as for the summons issued after arrest, the arrestee
did not cooperate. Mere presence will not amount to appearance or
cooperation.
4.7) The 1st Respondent submits that in additional grounds, the petitioner
has stated that accused was detained from 7.30 am on 13.6.2023. After
filing of our additional counter, petitioner has changed her stand and now
stated, in Para-5 that the detenu reached the residence at 9.30 am on
13.6.2023. This shows that the petitioner is trying to improve upon his case
and manufacturing wrong facts as per his convenience.
4.8) The 1st Respondent submits that he denies the averment in para-6 of
rejoinder affidavit that no prudent man will believe the claim of ED that
"Arrest memo" and "Grounds of Arrest” consisting of 6 pages were
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prepared and executed before 1.39 am. It is submitted that what is required
is, "informing" of grounds of arrest and not service of Grounds of arrest. I
submit that "informing" of 'grounds of arrest' to an arrestee is provided
where a person is suddenly taken into custody. In this case, the arrestee is
aware of the registration of ECIR in 2021 and the about the facts of the ED
case which is evident from the Court cases filed by him against ED. He was
aware about the details of the cases, when he appeared for the summons
dated 7.10.2021. He is aware of the ED case when he challenged the
subsequent summons before this Hon'ble Court and then before the Hon'ble
Supreme Court. The arrestee was aware of the details of the case, for which
the search was being conducted on 13.6.2023. After arrest, the arrestee was
duly informed "the grounds” of arrest and case for which he is arrested. That
is the reason why he refused to acknowledge that "communication" of arrest
and refused to sign the arrest memo, a single page printed form. In such
background of facts, the arrestee cannot be allowed to feign ignorance that
he was not informed of "grounds" for which he was arrested. If this is
allowed, this would defeat the purpose of section 19 of PMLA which is to
aid investigations.
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4.9) The 1st Respondent submits that he stoutly denies the averments in
para 6 of rejoinder affidavit that the arrest memo and grounds of arrest were
not presented before the Learned Judge on 14.6.2023 or 15.6.2023 and that
they were prepared much later and as an afterthought to suit the
convenience of the respondent. I submit that at the time of seeking remand
on 14.6.2023, ECIR, Remand Report/request. "Arrest memo & Ground of
arrest” were duly presented to the Learned Judge in open Court. These
documents (ECIR, Remand Report, arrest memo and grounds of arrest) are
also referred to by the Learned Judge while passing "remand order". In
addition, and without prejudice to the above factual position, it is submitted
that even the Remand Report/request contains all the averment of grounds
of arrest. After participating in all the legal proceedings in the Special
Court, to raise the plea that the documents were not presented to the Court
on 14.6.2023 at this belated stage, is false and deserves to be rejected. No
such averment was made before the Ld Special Judge in the Bail
Application which was made immediately after the first order remanding
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petitioner to Judicial Custody.
4.10) The 1st Respondent submits that he denies the averments in para-7 of
rejoinder affidavit that the above referred documents were prepared much
later. As far as the mentioning of the telephone number of Ashok Kumar as
944225356 (Nine digits), 1 submit his telephone number is 9442253536. He
was called on the said number 9442253536 but he did not pick up the call
and hence I sent the text message to the phone number 9442253536 of Mr.
Ashok Kumar. The mentioning of 9 digits in the arrest memo is an
accidental clerical mistake which would not vitiate any proceeding and the
petitioner is attempting to make a mountain out of a mole hill in this regard.
As a precaution, print out of screen-shot of mobile call along with print out
of email sent were enclosed along with the arrest memo. The learned
Special Court Judge, after having perused the same has recorded that ‘proof
filed’ for communication of arrest to relatives. That is the reason, at about
11.49 am on 14.6.2023, the petitioner was able to send email to ED office
that her husband was arrested in the above case by giving the details of the
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case in which he was arrested. Receipt of email is not denied by the
petitioner.
4.11) The 1st Respondent submits that he denies the averment in para-8 of
rejoinder affidavit that this document of communication of arrest to
relatives, should have come into existence at or before 1.39 am on
14.6.2023. This statement seems to have been made by the petitioner on the
assumption that communication of arrest to be given prior to arrest.
However, the legal position is that Information about the arrest need to be
communicated only after arrest and NOT before effecting arrest. As stated
already in arrest memo, immediately after arrest, efforts were made to
communicate arrest by sending SMS to the mobile phone of brother of
accused as he did not pick up call. In addition, email address of petitioner
traced out from the income tax records and email was sent at 8.12 am. Email
communication was NOT the only mode but in addition to SMS already
sent.
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4.12) The 1st Respondent submits that he denies the further averment in
para-8 of rejoinder affidavit that 'Grounds of arrest' nowhere records that the
grounds of arrest were informed to the detenu. "Grounds of arrest" will have
the contents as to the reasons leading to arrest. Informing of grounds of
arrest is recorded in arrest memo. Only after informing of "grounds of
arrest" orally, arrest was effected.
4.13) The 1st Respondent submits that he strongly denies the averment in
para-9 of rejoinder affidavit that "Grounds of arrest" and "memo of arrest"
are incorrectly framed documents, which falls under the 2nd limb of Section
464 IPC. It is stoutly denied that these documents are incorrectly framed.
Till the filing of pleading into Court, aparty is entitled to add/delete/modify
the content. Such addition will not make the document "incorrect
document". These documents were filed, verified, and accepted by the
competent Court on 14.06.2023. Having failed to make out any case for
maintainability of Habeas Corpus Petition, now the petitioner has raised this
unwarranted allegation which amount to casting aspersion on the judicial
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proceedings before Ld Special Judge.
5) Interim Order dated 15.06.2023 and aftermath
5.1) On 15.06.2023, the present Habeas Corpus Petition came up before
this court and at the admission stage, the learned senior counsel for the
petitioner was heard. On behalf of the respondents, the learned Additional
Solicitor General of India took notice and made submissions to the limited
extent he had instructions. Upon considering the same, this court passed the
order dated 15.06.2023 by framing two questions as to whether or not the
complaints made on behalf of the petitioner were factually correct and even
if so, whether still the same would amount to absolute illegality in passing
the remand order so as to entertain and grand relief in the Habeas Corpus
Petition. Yet another question as to whether or not the period spend by the
detenu in the hospital should be excluded from the first 15 days of judicial
custody for the purposes of granting custody of the detenu to the
respondents, was also framed as per the submissions made by the learned
Additional Solicitor General of India.
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5.2) The matter was posted to 22.06.2023 for filing of counter and
disposal of the Habeas Corpus Petition. By the same order, by considering
the medical records and the medical bulletin issued by the Omandurar
Hospital upon the request made on behalf of the petitioner, this court found
that the detenu needed emergency By-pass surgery and treatment for
blockages in arteries, Since on behalf of the detenu, it was pleaded that their
regular physician is at Kauvery Hospital, Chennai, this Court directed
shifting of the detenu from the Government Hospital to Kauvery Hospital,
Chennai so as to undergo the treatment at the hospital of the choice of the
detenu at their own cost.
5.3) The further developments are that the detenu was shifted to Kauvery
hospital and it is represented that he had undergone the said surgery and
treatment and is presently continuing his treatment in the said hospital. On
16.06.2023, the respondents pressed for custody of the detenu and order has
also been passed by the learned Principal sessions Judge, Chennai granting
the custody. But however, on condition not to remove him from the hospital
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and to act as per the fitness directions of the treating doctors. Pursuant
thereto, the parties have filed their additional pleadings in the form of
additional affidavits , counter affidavits, rejoinders and additional counter
affidavits and this court took up the mater for hearing on 22.06.2023.
5.4) After elaborate arguments put forth by the petitioner’s counsel on
22.06.2023 the learned Solicitor General of India sought an adjournment for
presenting his arguments owing to his preoccupied commitments and the
case was posted for hearing on 27.06.2023. On that date, the arguments of
both parties concluded and the order was reserved.
5.5) In the intervening time, the respondents assailed the order of this
court dated 15.06.2023 in SLP's filed before the Hon’ble Supreme Court
and the Hon’ble Supreme Court was pleased to pass its interim order dated
21.06.2023. It observed that the final opinion of this court on the two issues
viz, (1) maintainability of the Habeas Corpus Petition and (2) Exclusion of
the period of treatment undergone by the detenu from the period of custodial
interrogation is likely to be considered in subsequent hearings and
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adjourned the case to 04.07.2023.
6) Contestation of parties:-
6.1) We have heard the counsels for both sides at length, perused the
petitions, additional grounds, counters, rejoinders , sur-rejoinders and the
case laws presented by them. We also appreciate and thank the counsels for
filing lengthy written submissions summarizing the arguments in quick
time.
6.2) It is the case of the petitioner that the detenu is innocent, there is no
direct allegations against him in the predicate offences and the agencies are
hounding him at the behest of his political adversaries whose interests are
directly in conflict with that of the detenu. In the process, he is harassed, his
right to life and liberty is trampled and the constitutional safeguards for
curtailing the liberties by established procedures of law is given a go by. It
is pointed out that the case pertains to offences said to have been committed
during the year 2014.
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H.C.P.No.1021 of 2023
6.3) The respondents on the other hand contend that the respondents had
sufficient grounds for detaining the detenu, the officers are only doing their
duties and the detenu being an influential minister in the ruling government
has not cooperated in the investigation process and threatened the
investigating officers and that the procedures of Sec 19 of PMLA, 2022 is
scrupulously followed.
7) Arguments of the counsels:-
7.1) Learned senior counsels for the petitioner Shri. Mukul Rohatgi &
Shri N.R Elango framed their arguments on the 3 contested points viz. (1)
on the question of exclusion of time. (2) Maintainability of Habeas Corpus
Petition and (3) ED cannot seek custody as they are not Police Officers. Shri
Tushar Mehta, learned Solicitor General of India and
Shri.A.R.L.Sundaresan, learned Additional Solicitor General of India,
framed their arguments on the 3 contested points in 7 sub titles viz. (1)
Maintainability of Habeas Corpus Petition. (2) No legal requirement to
comply with Sec 41 A of CrPC in the lights of additional safeguards under
Sec 19 of PMLA, 2002. (3) Rules of Sec 19 of PMLA duly followed and
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hence no violation of Articels 20-22. (4) Exclusion of the period of
treatment undergone by the detenu from the period of custodial
interrogation. (5) Power of ED to take custody under Sec 167 CrPC. (6)
Absence of malice (7) Reasons for presence of CRPF and no presumption of
detention. Learned Additional Solicitor General
Shri.A.R.L.Sundaresan would vehemently contend that the period of
hospitalization of the arrestee should be excluded until the date of actual
custody.
7.2 ) They had filed detailed written submissions listing their arguments
and analysis of case laws they intended to rely in support of their case.
7.3) The sum and substance of the arguments on law advanced by all the
counsels are in harmonious agreement that the right to liberty and the
safeguards against unlawful detention enshrined under Article 20, 21 & 22
is a fundamental right that is absolute and non negotiable. Depriving such a
valuable right should be resorted to only in exceptional circumstances.
There was no quarrel to the preposition that the procedure to safeguard the
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guaranteed rights is postulated in the Code of Criminal Procedure, 1973.
There is no contestation to the idea that Agencies empowered to detain or
arrest a person, that in effect curtail his liberties, should have to follow the
statutory safeguards postulated under CrPC if similar procedural safeguards
are not provided for in the special Acts that empower them. There is no
disagreement that no person can be detained to curtail his fundamental right
to liberty except by an established procedure of law. Against the
background of this harmony, amidst the allegations and counter allegations
on facts and the contestations on law and precedents, we proceed to discuss
the queries on an order of convenience.
8) Whether ED has the power to seek Custody of the persons arrested.
8.1) Learned senior counsel for the petitioner asserts that ED is not
entitled for police custody as they are not police officers empowered under
Sec 167 of CrPC in as much as the PMLA, 2002 does not entrust the ED
Officers with the powers to act as Officer in Charge of Police Station as
defined under Sec 2 (o) of CrPC. They contend that the procedure for SHO
is established through Rule 637 of Tamil Nadu Police Standing Order.
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They take support from the decision of the Hon’ble Supreme Court of India
in the Case of Vijay Madanlal Choudhary & Ors vs UOI & Ors 2022
SCC Online SC 929 holding that the Enforcement Directorate officials
under PMLA are not Police officers. Per contra, learned Solicitor General of
India contends that the issue is settled and relies on the decision of the
Hon’ble Supreme Court in the case of Directorate of Enforcement vs
Deepak Mahajan 1994 (3) SCC 440, Vijay Madanlal Choudhary & Ors
vs UOI & Ors 2022 SCC Online SC 929, Anupam Gulkarni Case, P
Chidambaram vs Directorate of Enforcement (2019) 9 SCC 24 the
Assistant Director ED vs Hassan Ali Khan (2011) 12 Supreme Court
Cases 684. Perusal of the case laws cited by the respondents indicated that
the first four cases had no connection with the issue on hand namely the
question of remand of police custody to ED officers under Sec 167 CrPC for
investigation of offences under PMLA, 2002 and therefore are
distinguishable from the present case. In Hassan Ali Khan case, the
Hon’ble Supreme court has indeed allowed custody under extra ordinary
circumstances as recorded by Bench in para 3 and para 4 of its order dated
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17.03.2011. The question whether the parliament intended to award custody
to the ED Officers under PMLA or not does not appear to have been
agitated before any court as on date and appears a matter res integra.
8.2) Normally, the CrPC governs the operations of all investigations
including the powers of arrest search and seizure. However, the powers such
as arrest, search and seizures are all entrusted to the officers enforcing the
special acts like NDPS, Customs, FERA, PMLA etc under the said acts.
Usually, the officers who file final report under Sec 173 CrPC after
completion of investigation are police officers. The officers under special
laws usually file complaint (Private) under Section 200 of CrPC after
investigations. However, that alone is not the test to determine whether a
particular officer has the powers of a police officer or not though it is the
dominant test. The colour and character of the powers entrusted with the
officers will determine whether the officers enforcing special enactments
can be termed as police officers. Accordingly, the Hon’ble Supreme Court
has gone on to pronounce whether an officer empowered under special laws
were police officers or not in a number of cases. In the Case of Vijay
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Madhanlal Choudhary, the Hon’ble Supreme Court has held that ED
Officials under PMLA, 2002 are not police officers.
8.3) In terms of Section 2 (O) of CrPC, “Officer in Charge of Police
Station” includes when the Officer in Charge of Police Station is absent
from the station-house or unable from illness or other cause to perform his
duties, the police officer present at the station house who is next in rank to
such officer and is above the rank of the constable or when the state
government so directs, any other police officer so present. Rule No 637 of
Tamil Nadu Police Standing Order establishes the procedure to be followed
by a station house officer in matters of Police Custody. And the Station
House Officer is the sole person responsible for the safety and well being of
the detenu in police custody. And police custody shall be awarded only to
such officers who are entrusted with the powers of a Station House Officer
under the CrPC. It is for this reason, the Officers of Customs, Central
Excise, GST & FERA are empowered to act as Officer in Charge of Police
Station under the respective special acts.
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8.4 ) It is the scheme of the constitution and the statutes that no person
shall be detained beyond 24 hrs for any offence under any law passed by the
parliament except under a judicial order passed by a competent court. This
applies to all investigating agencies including Police officers. Meaning, an
accused or suspect will be available for custodial interrogation immediately
after arrest for 24 hours for all agencies after which they have to necessarily
produce the detenu to a competent court for further orders. A 60 day judicial
remand for offences carrying punishment of less than 7 years and a 90 day
judicial remand for those offences carrying punishment above 7 years is
contemplated under the statutes. Thereafter, if the detenu can furnish bail,
he would be released from judicial custody. In rare cases where custodial
interrogation is necessary, on an application made by a competent authority
under Sec 167 of CrPC, the competent court will take a judicious decision
to award custody to the empowered agencies for a maximum period of 15
days from the date of initial remand. Since custody other than judicial
custody is an exception and not a rule as it heavily impinges on the
fundamental right of citizens Sec 167 CrPC is the lone provision under
which such custody is awarded. No special act has ever intended to
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empower officers to seek custody otherwise than through the provisions of
Sec 167 CrPC. Wherever officers are empowered to conduct investigations,
the machinations of CrPC becomes applicable. If any of the above
provisions is violated the detention becomes illegal. Thus parliament has
consciously maintained a balance between the fundamental right to liberty
and the need for restraining persons in conflict with laws and the need for
custodial detention to conduct investigations.
8.5) Therefore, it becomes necessary to examine whether ED is entitled to
seek custody under Sec 167 of the CrPC. A reading of Section 167 together
with Sec 2 (o) of CrPC and the special acts like The Customs Act, 1962,
The Central Excise Act, 1944, The CGST Act, 2017 and FERA, 1973
indicates that Sec 167 applies only to those officers who enjoy the powers
of a station house officer by virtue of them being empowered to act as an
officer in charge of a police station under the CrPC and the concerned
special acts. Similar provisions to empower ED Officers as Station House
Officers are not provided under PMLA, 2002. It appears that the Parliament
has consciously omitted to confer with the ED Officers acting under PMLA,
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2002 the power of a Station House Officer.
8.6) The power of Station House Officer is necessary as holding a citizen
in custody comes with specific duties and responsibilities. The Safety and
well being of the detenu is the exclusive responsibility of the Station House
Officer. The procedure is established in Rule 637 of the Tamil Nadu Police
Standing Order as under:
637. Prisoners in Police Custody —
(1) (a) A Prisoner in Police custody shall not be
permitted to leave the lockup after night fall, except in
special and emergent circumstances and that with
adequate escort, which shall be recorded in the General
Diary and the Sentry Relief Book. A prisoner in Police
custody prior to remand is entitled to see a Pleader and
his relations.
(b) Whenever any punitive action is taken or
contemplated against any foreign national, he should be
provided with facilities, if he so desires, to communicate
over the telephone or by telegram or letter, with his
Counsel or High Commissioner or Consular-General or
his representative, as the case may be. (G.O. Ms. 4148,
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Home, 18 Oct. 1949)
(2) (a) He should not at any time be allowed to talk to
members of the public.
(b) (i) No person in Police custody shall be allowed to
be garlanded or make speeches. He shall not also be
allowed to receive food direct from other people. (G.O.
Ms. 1512, Home 13 May 1964)
(ii) If a prisoner at the time of arrest is already
garlanded, a complete search shall be made
immediately after arrest and the garlands as well as the
other articles except wearing apparel shall be removed
and taken possession of after preparing a Seizure
Mahazar.
(3) (a) Dhurries and blankets are supplied for the use of
prisoners in Police lock-ups according to the scale
noted below:—
(i) All Police Lockups .. Two dhurries each.
(ii) Police Lock-ups in Stations where the Police Staff
are supplied with blankets. .. Two blankets each. These
articles will be treated as Station property and the
officer in charge of the Station or Out-Post will be
responsible for their issue to such of the prisoners who
do not provide themselves with their own bedding.
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(b) The Police Lock-up if it contains a prisoner or
prisoners shall be unlocked at day-break. The bedding
of the prisoners shall be at once brought outside, well
shaken and, if it is clean, left for some hours in the sun.
(G.O. 3017, Home 2nd Aug- 1937)
(c) The night vessels shall be removed and the lock -up
thoroughly cleaned. As far as possible a flush out seat
should be provided in each lockup cell in Police
Stations.
(d) The prisoners shall be taken to the latrine and shall
be allowed to wash. They shall be fed daily at 10 a.m. or
earlier if necessary, in time to be taken to Court after
meals, and again at 5 p.m. If prisoners are not brought
to the Station till after the hours prescribed for meals
they should be fed as soon as possible after they are
confined.
(e) Officers in charge of Police Stations and Officers in-
charge of Guards will be held personally responsible
for seeing that these orders are carried out.
(4) (a) Custody of woman in Police lock-ups during
night should be avoided. This should be ensured by
avoiding arrest of women at times when their custody
during night may be necessary and by sending them off
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for remand as soon as possible after arrest. Where the
custody of women in a Police Lock -up during night
becomes inevitable, either two to three women Police
Constables should be detailed to guard the prisoner or
a reliable elderly Female Warder should be engaged for
the full duration of the Women's custody in the Police
lock-up. (G.O. Ms. 1227, Home 6th Apri1 1963)
(b) Every Police Station should have a list of Female
Warder who can be called for duty whenever necessary
and they may be paid for their services from
contingencies
So under Sec 167, police custody can be given by a magistrate only to
an officer who is competent to function as a Station House Officer. Under
the PMLA, 2022, the ED Officers are not vested with the power to act as
Station House Officers unlike in Customs Act, 1962, Central Excise Act,
1944 and even FERA enforced by its own Officers.
8.7) The reliance placed by the learned Solicitor General of India in the
Directorate of Enforcement vs Deepak Mahajan reported in 1994 (3)
SCC 440 is misplaced. It is a case related to the Foreign Exchange
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Regulation Act, 1973 where under the officers of enforcement directorate
are empowered to act as a Officer in charge of a Police Station. Also, in the
said case, the court dealt with the issue of judicial custody and not police
custody.
8.8) It is nobody’s case to argue that it is a careless omission. The decision
to not empower ED Officers appears a conscious bridle considering the
sweeping powers granted to the authorities under the Act. Though the
offences of Money Laundering is distinct from any or all of the scheduled
offences under PMLA, 2002, there is a bar on the ED officials to suo-moto
file ECIR for the offence of money laundering. An FIR or Complaint by a
competent authority in a predicate offence is a sine qua non for ED officials
to initiate a proceeding under the PMLA.
8.9) Chapter IV of PMLA, 2002 obligates the Banking Companies,
Financial Institutions and intermediaries that are normally touted as the
routes to integrate laundered money back into the system to provide
information to the Enforcement Directorate officials in the format so desired
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and keep records. It is a sweeping power that can help identify the trails of
the proceeds of crime and the trails of the laundered money to confiscate
property that are proceeds of crime so also to complete substantial
meaningful investigations. It was observed by the Hon’ble Supreme Court
in the case of Vijay Madanlal Choudhary & Ors vs UOI & ors the
proceeding under PMLA, 2002 is more in the nature of inquiry proceedings
and not investigations. The collection of evidences to track the POC and
money laundering trail are predominantly documentary in nature. Therefore,
it appears that the Parliament in its wisdom did not see the need for
custodial interrogation for proceedings under PMLA, 2002 beyond the first
24 hours of arrest.
8.10) It will be wrong to assume that the means of fair investigation will be
frustrated if police custody contemplated under Sec 167 CrPC is not
awarded to ED officers to bolster the investigations into the offence of
money laundering. Parliament has vide Sec 53 of PMLA, 2002 invested the
Union Government with blanket powers to confer the powers under PMLA
to any officer of the Central Government or State Government seemingly
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sufficient to find, track seize and confiscate Proceeds of Crime and its trails.
8.11) It is an admitted and settled position that no custody of any kind is
permissible under the constitutional and statutory scheme except through
the procedure established by law. So, in our view, unless the ED Officers
are conferred with the powers of the Officer in Charge of a Police Station
under PMLA, 2002 within the meaning of Sec 167 and 2 (o) of CrPC, police
custody to ED under PMLA is impermissible.
8.12) In result, under the present scheme, the officers empowered to arrest
under Sec 19 of PMLA, 2002, are required to produce the accused to the
competent court within 24 hours of arrest and seek only Judicial remand and
the same may be ordered by the judicial magistrate under the extant
provisions of the Act. In effect, ED cannot hold custody of any person
beyond the first 24 hrs of arrest.
9) Maintenance of Habeas Corpus Petition:-
9.1) Learned senior counsel for the petitioner would aver that Writ of
Habeas Corpus is maintainable when the arrest is illegal and the subsequent
order of remand is passed in a mechanical manner. Reliance was placed on
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the decision of Gautam Navlakha Vs NIA 2021 SCC Online SC 382 and
Madhu Limaye, In re, (1969) 1 SCC 292. It was argued that non
communication of grounds of arrest amounts to infraction of Article 22 of
the Constitution of India. They alleged a 8 hour delay in communicating the
same via email. He has pointed out to the posterior date stamp in the
grounds of arrest to argue that the remand order was passed without seeing
the grounds of arrest. They contested the bonafides and the existence of the
grounds of arrest at the time of arrest. They assail that the fact that the
detenu is aware of the facts of the case is not an excuse to justify the non
compliance of the provisions of Sec 9 of PMLA, 2002. It was also assailed
that supply of remand application is no compliance under Sec 19 of PMLA
2002. In support of this claim they relied on the decision of a full bench of
this court in Selvanathan @ Raghavan reported in (1989) 1 MWN (Crl)
117. It was urged that failure to issue notice under Sec 41 A CrPC makes
the arrest illegal. It is an important procedural safe guard prescribed in terms
of Article 21 of the Constitution of India. Reliance was placed in the case of
Arnesh Kumar vs State of Bihar (2014) 8 SCC 273 where inter-alia
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directions were issued to the effect that no arrests can be made without
issuance of 41 A Notice if the punishment for the offence is below 7 years.
They further relied on Satendar Kumar Antil vs CBI (2022) 10 SCC 51
wherein it was held that the consequences of non compliance of Sec 41 A
certainly inure to the benefit of the person detained while considering the
bail. It was averred that the argument of Ed that Sec 41 A CrPC is not
applicable to PMLA cases is not correct and cited the extant provisions of
CrPC. They relied on Satendra Antil case that directed that courts would
have to satisfy themselves of the compliance of Sections 41 and 41 A of the
code. Any non compliance would entitle the accused for grant of bail. They
pointed out that reliance of the respondents on the judgment of Vijay
Madanlal Choudhary case is incorrect as it has not laid down the
proposition that 41 A notice would not apply to proceedings under PMLA,
2002.They assail that the Hon’ble Supreme Court did not consider or
address the question of following or otherwise of Sec 41 A CrPC in cases
under PMLA, 2002.
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9.2) Per contra, the learned Solicitor General appearing for the
respondents would submit that it is a settled position of law that Habeas
Corpus Petition is not maintainable if a judicial order is passed remanding
the accused to custody. Reliance is placed on Saurabh Kumar v. Jailor,
Koneila Jail, (2014) 13 SCC 436, Dashrath Rupsingh Rathod v. State of
Maharashtra, (2014) 9 SCC 129 and Saurabh Kumar v. Jailor, Koneila
Jail, (2014) 13 SCC 436. Habeas Corpus Petition is a test of the validity of
the actions of the executive and more particularly a test of legality of
detention by the executive. The law is clear that in habeas corpus
proceedings a court is to have regard to the legality or otherwise of the
detention at the time of the return and not with reference to the institution of
the proceedings. Reliance is placed on Serious Fraud Investigation Office
vs. Rahul Modi (2019) 5 SCC 26, Sanjay Dutt v. State through CBI,
Bombay (II), (1994) 5 SCC 410, Naranjan Singh Nathawan v. State of
Punjab (1952) 1 SCC 118, Basanta Chandra Ghose v. King-Emperor
1945 SCC Online FC 3, Talib Hussain v. State of J&K, (1971) 3 SCC
118 at page 121, Ram Narayan Singh v. State of Delhi [AIR 1953 SC
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277: 1953 SCR 652. He averred that infirmity in the earlier detention will
not invalidate a legal detention at a later stage. Reliance was placed on
Kanu Sanyal v. Distt. Magistrate, Darjeeling, (1974) 4 SCC 141: 1974
SCC Cri 280 and Col. B. Ramachandra Rao (Dr) v. State of Orissa,
(1972) 3 SCC 256. He urged that habeas corpus petition can be held
maintainable only to the extent if there is positive material for the petitioner
to come out with clear and unimpeachable fact that alleged detenu is in
illegal detention. Reliance was placed on Bhagwan Singh v. State of
Rajasthan, 2005 SCC Online Raj 861 : (2006) 1 RLW 790. He urged that
Habeas Corpus Petition is maintainable only when the detention is without
authority of law. Reliance is placed in State v. H.Nilofer Nisha, (2020) 14
SCC 161. He would urge that as the detenu had moved bail that was
rejected and therefore Writ of Habeas corpus will not lie. He contended that
The order of remand can be challenged only in appropriate proceedings
either under the revisional jurisdiction or appellate jurisdiction.
9.3) He contested that the case of Gautam Navlakha relied by the
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petitioner does not lay down the law and is distinguishable from the case on
hand. He averred that the judgment in Madhu Limaye &Ors. (1969) 1
SCC 292, being relied upon by the petitioner, is completely distinguishable
for the reason that there were two major constitutional infirmities in that
case namely, as evident from para 8 i.e. no FIR was registered on
06.11.1968 which mentioned the offence of section 143 of IPC which was
also the date when Madhu Limaye was arrested. The FIR came to be
recorded only on 19.11.1968 because the matter had been brought to
Supreme Court by way of an Article 32 petition. The authorities in that case
realized that arrest could not have been made for non-cognizable offences
and it was under these circumstances that the Court found the arrest itself to
be illegal. The second constitutional infirmity is that there was no averment
or a positive assertion that Madhu Limaye and his companion were
informed the grounds of arrest and therefore the court found a breach of
article 22(1). It was under these egregious circumstances that the court held
that an order of remand would not cure such glaring constitutional
infirmities. The learned Solicitor General also contended that there is no
fact situation for issue of writ of Habeas Corpus in the instant case and
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relied on N.M.T. Joy Immaculate v. State, 2002 SCC OnLine Mad 265.
He urged that remand order is a judicial order and therefore cannot be
interfered with and relied on Dashrath Rupsingh Rathod v. State of
Maharashtra, (2014) 9 SCC 129.
9.4) According to the petitioner, this writ petition came to be filed with
the available grounds on the day of arrest on the plea that the fundamental
rights of the detenu is trampled owing to political adversity and the
safeguards postulated in the statutes to prevent abuse was not followed by
the officials of the Enforcement Directorate. From the time of arrest until
the filing of this petition, the accused was in the detention of the
respondents, taken to the hospital by the respondents for medical checkup
before remand, and before hearing the petition, the accused was remanded
in judicial custody. Instances of high-handedness, manhandling and
infirmities in the documents and procedures indicating malice were alleged
by the petitioner. The respondents on the other hand submitted that the
actions taken by the directorate are lawful and due procedures were
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followed and that the accused was not cooperative and threatening the
officers owing to his influential position that necessitating his arrest. He
also submitted that there were specific reasons for the presence of CRPF at
the search premises and there was no malice and argued that presumption of
detention for the mere presence of CRPF is incorrect.
9.5) The petitioners would contend that the arrest is illegal, the remand is
without application of mind and therefore custody is illegal and writ is
warranted. On the other hand, the respondents would urge that they had
followed the due procedures of law, the remand was after apprising the
grounds of arrest, proper application of mind and after satisfying the laws. It
was urged that Habeas Corpus Petition is not maintainable once the remand
order is legal even if there is infirmities in the procedures preceding the
remand and submitted many case laws.
9.6) On the face of the case laws submitted by the parties, it would appear
that once a legal remand order which is judicial in nature is passed then
there is no way Habeas Corpus Petition will lie and the only remedy
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available to the detenu is to contest and set aside the remand order. But as
you delve deeper, it would indicate that the case laws relied extensively by
both the petitioner and the respondents governed two kinds of detention.
Preventive detention before commission of crime and detention after
commission of crimes. In the case of preventive detentions, the contention
that the existence of a valid judicial remands order will render the
procedural violations at the hands of the executive of no consequence. In
detention against offence cases, where the object of arrest and detention is
very different from that of preventive detention, a failure to follow the
procedural safeguards at the time of arrest will vitiate the proceedings and a
writ of habeas corpus would lie. In other words, in preventive detentions
where cause of action is continuous, it is only the legality of the remand
order on the date of hearing is relevant. In other cases, failure to follow the
procedural safeguards violating Article 22 will vitiate the arrest proceedings
and render the remand order, if mechanically passed, also illegal. In any
event, for the purposes of deciding the case on hand in harmony, it can be
safely derived from the case laws cited by the parties that the test of the
legality of a remand order shall be on the date of hearing, to entertain the
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Habeas Corpus Petition.
9.7) Perusal of the case records indicates that the detenu was remanded to
judicial custody on 14.06.2023. After the commencement of hearing this
Habeas Corpus Petition, the learned PSJ had on 16.06.2023 had remanded
the detenu in Police Custody (Custody of ED) for a period of 8 days with
some conditions. It is now part of the records that the ED after having
consulted the doctors, in its wisdom decided effective interrogation would
not be possible in the circumstances and therefore informed the learned PSJ
accordingly.
9.8) On 15.06.2023, this court had in para 21 of the order had specifically
ordered that the detenu shall continue in Judicial custody. While so, the ED
in a hearing before the learned PSJ on 16.06.2023 has pressed for police
custody and the learned PSJ proceeded to award custody to the ED for a
period of 8 days. Whether this omission/commission happened by oversight
or was conscious pales into insignificance as judicial discipline demands
that the order awarding Police custody to the ED ought not to have been
passed.
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9.9) For the reasons discussed in detail in para 8.11and 8.12 of the order
ibid, ED is not entitled to custodial interrogation of the accused under the
PMLA, 2002. Therefore the order of custody dated 16.06,2023 passed by
the learned PSJ is without jurisdiction and without authority of law and
therefore is illegal. The order fails the test of legality both of law and
omission to follow judicial discipline and we have no hesitation to hold that
the detention at the time of hearing the Habeas Corpus Petition is illegal.
9.10) Accordingly, we hold that Habeas Corpus Petition is maintainable in
the facts and circumstances of this case.
9.11) In view of the above discussions and conclusions arrived in the case,
the necessity to examine the important question whether Sec 41 A CrPC is
applicable to arrest proceedings under PMLA, 2002 and whether non
compliance of the said provision in cases attracting punishment of less than
7 years would vitiate the arrest proceedings under PMLA and subsequent
remand, is of no consequence to the outcome of the present case and has
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become redundant for the purposes of disposing this Habeas Corpus
Petition. Therefore the contestations on that count advanced by the parties
are left open.
10) On Exclusion of Time:-
10.1) It is now a settled law as laid down in various decisions of the
Hon’ble Supreme Court pointed out by the petitioners that the period of
police custody cannot be extended beyond 15 days from the date of the
initial remand in terms of Article 22 and the relevant provisions of the
Criminal Procedure Code, 1973. And it is also pointed out by the learned
Solicitor General of India that the Hon’ble Supreme Court in the case of
CBI vs Vikas Mishra 2023 SCC online Raj 861 had deviated from a
stricter view. It was an extraordinary situation where the accused by
unscrupulous methods schemed to frustrate investigation by abusing the
constitutional safeguard prompting the Hon’ble Supreme Court to invoke
it’s discretionary powers to allow custodial interrogation beyond 15 days on
well founded grounds. Such circumstances does not seem to exist in the
present case as the ailment of the detenu appears genuine and the detenu has
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undergone a by-pass surgery and ED officials themselves have after expert
medical opinions thought it not fit to take custody of the detenu awarded to
him. His condition was examined by the Government Doctors, the ESIC
doctors deputed by the Enforcement Directorate and the doctors of the
private hospital who treated him.
10.2) As, under the PMLA, 2002, the ED is not entitled for custodial
interrogation as discussed in para 8.11and 8.12 of this Order, the question of
exclusion of time ceased to arise. Accordingly, the miscellaneous petition
seeking exclusion of time is liable to be dismissed.
11) In the result, the Habeas Corpus Petition is Allowed in the following
terms:-
1. The Writ of Habeas Corpus Petition is maintainable;
2. Enforcement Directorate is not entrusted with the powers
to seek police custody under the Prevention of Money
Laundering Act, 2002;
3. Miscellaneous petition filed by Respondent 1 seeking
exclusion of the period is dismissed; and
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4. The detenu is ordered to be set at liberty forthwith.
04.07.2023
D.BHARATHA CHAKRAVARTHY, J.
I have had the benefit of going through the Opinion of Respected
Sister. I am unable to agree with the reasonings or the conclusion reached
by Her Ladyship and I had already circulated my Opinion to her and my
opinion stands and it is as follows :
A. The Petition :
This Writ of Habeas Corpus is filed by one Megala, complaining
about the illegal detention of her husband, namely, one V.Senthil Balaji, son
of Velusamy, aged about 48 years, with a prayer directing the respondents
herein, namely, Deputy Director, Directorate of Enforcement, Chennai, to
produce him before this Court and to set him at liberty.
B. The case of the petitioner :
2. It is the case of the petitioner that there are three criminal cases
pending against the detenu in C.C.Nos.19, 24 and 25 of 2021, for alleged
offenses under Sections 406, 409, 420 and 506(I) read with Section 34 of
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the Indian Penal Code (hereinafter referred to as 'I.P.C') are pending on the
file of the learned Additional Special Court for Trial of Cases against MPs /
MLAs at Chennai (hereinafter referred to as Predicate offences). The
occurrences are of the year 2014. It is alleged that the detenu had obtained
money from third parties promising jobs in the Transport Department and
thereafter cheated them. On the basis of the predicate offences, a case is
registered for an offence under Section 4 of the Prevention of Money-
Laundering Act, 2002 (hereinafter referred to as 'P.M.L.A').
3. Pursuant thereto, on 13.06.2023, the respondent officials suddenly
came to their house at Greenways Road, Chennai, in the morning at about
7.30 A.M and interrogated the detenu continuously for about 16 hours and
searched his office and residence. He was denied permission to meet his
relatives and advocate and was arrested at about 1.30 A.M the next day.
The offence is punishable maximum 7 years and therefore without
following Section 41-A of the Code of Criminal Procedure (hereinafter
referred to as 'Cr.P.C.,') and other provisions of Cr.P.C., the arrest is made.
The mandate of informing the grounds of arrest under Article 22 of the
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Constitution of India is also not followed and the relatives were not
informed.
4. After the arrest and due to manhandling, he became seriously ill
and was taken to the Omandurar Government General Hospital, Chennai for
obtaining medical fitness about 2 A.M wherein after examining the
condition of the detenu, he is admitted in the Cardiac I.C.U. In that
extraordinary situation, the petitioner made a representation dated
14.06.2023 to the authorities. Thereafter, having no other option and
reserving her right to file additional affidavit, the present petition is filed.
C. The case of the respondents :
5. The predicate offences are Schedule Offences under P.M.L.A and
allegations relate to receipt of monies from the complainants. The very
allegations per se will lead to ingredients of the offence under Section 3
punishable under Section 4 of P.M.L.A. Therefore, on 29.07.2021 an
E.C.I.R was recorded, in which, the detenu is the main accused.
Summonses were issued for personal appearance of the detenu on
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04.08.2021 and 19.08.2021. But, the detenu did not appear and sought for
adjournment. On the third occasion, on 07.10.2021, the detenu appeared,
but, did not provide most of the details requested. Again, summons for his
appearance were sent, but, the detenu did not appear and requested for
adjournment on 17.03.2022 and 01.04.2022. On further summons, on
29.04.2022, he submitted a letter quoting that this Court granted stay in
W.P.No.12159 of 2022. Thereafter, on 16.05.2023, the Hon'ble Supreme
Court of India set aside the order passed by this Court on 01.09.2022 which
refrained the respondents for further investigation and permitted them to
proceed with the investigation.
6. Therefore, on 13.06.2023, at about 11.00 A.M, they started search
action at the premises of the detenu. The search was concluded and
panchanama was drawn at about 11.00 P.M. Immediately thereupon, the
summons under Section 50 of the P.M.L.A were issued, but, the detenu
refused to accept inspite of the efforts between 11.00 P.M to 12.00 A.M in
the midnight. Again, between 0.00 hours to 0.13 hours, on 14.06.2023, the
Investigating Officer personally attempted to serve the summons and record
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the statement of detenu. However, at about 0.30 hours, the detenu started
behaving in an intimidating manner and threatened the Investigating
Officer. Under the circumstances, the Investigating Officer started
recording the statement under Section 50 of the P.M.L.A in the presence of
two independent witnesses. At about 1.30 A.M, on account of the non-
cooperation of the detenu, they concluded the summons proceedings and the
detenu was arrested under Section 19 of the P.M.L.A, since the respondents
had reasons to believe that he had committed an offence under Section 3
punishable by 4 of the P.M.L.A. At about 1.39 A.M, the grounds of arrest,
which was reduced into writing, was attempted to be served on the detenu,
but, he refused to accept the same. Therefore, the arrest memo was
executed in the presence of two independent witnesses. At about 1.41 A.M,
intimation of arrested was tried to be conveyed to one Ashok Kumar, brother
of the detenu and one Nirmala, sister-in-law of the detenu through phone
calls. However, since they did not pick up the phone calls, intimation of
arrest was conveyed to Ashok Kumar through text message at 1.44 A.M.
Since the detenu complained about chest pain, he was taken and admitted at
Omandurar Government Hospital at 02.10 A.M. Once again, at about 8.12
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A.M, intimation of arrest was conveyed to the petitioner herein namely,
Megala, wife of the detenu, to Ashok Kumar, brother of the detenu and to
one Sathish Kumar, Chartered Accountant of the detenu through e-mail
also. At about, 12.00 P.M, a petition for remanding the detenu was filed
before the learned Principal Sessions Judge, Chennai. The grounds of arrest
were also produced for perusal of the learned Principal Sessions Judge,
Chennai. Thereafter, at about 3.30 P.M, the learned Judge visited
Omandurar Government Hospital and enquired the detenu in the presence of
Doctors and passed an order remanding the detenu to judicial custody for a
period of 15 days till 28.06.2023 at about 3.45 P.M. Subsequently, on the
same day, at about 5.00 P.M, after coming back to the Court, on behalf of
the detenu, a petition, filed for bail on behalf of the detenu and other
petitions, were heard. Simultaneously, at about 5.00 P.M, the respondents
also filed a petition for custody of the detenu. At about 6.00 P.M, the
learned Judge dismissed the petition to reject the remand while posting the
custody petition for hearing on 15.06.2023. Therefore, since the detenu is
in the judicial custody, the petition for Habeas Corpus is liable to be
dismissed.
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D. Proceedings before this Court and subsequent developments :
7. On 15.06.2023, the present Habeas Corpus Petition came up before
this Court and at the admission stage, the learned Senior Counsel for the
petitioner was heard. On behalf of the respondents, the learned Additional
Solicitor General of India took notice and made submissions to the limited
extent he had instructions. Upon considering the same, this Court passed
the order dated 15.06.2023 by framing two questions as to whether or not
the complaints made on behalf of the petitioner were factually correct and
even if so, whether still the same would amount to absolute illegality in
passing the Remand Order so as to entertain and grant relief in the Habeas
Corpus Petition. Yet another question as to whether or not the period spent
by the detenu in the Hospital should be excluded from the first 15 days of
judicial custody for the purposes of granting custody of the detenu to the
respondents, was also framed as per the submissions made by the learned
Additional Solicitor General of India. The matter was posted to 22.06.2023
for filing of counter and disposal of the Habeas Corpus Petition. By the
same order, by considering the medical records and the medical bulletin
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issued by the Omandurar Hospital, upon the request made on behalf of the
petitioner, this Court found that the detenu needed emergency bypass
surgery and treatment for blockages in arteries. Since on behalf of the
detenu it was pleaded that their regular Physician is at Cauvery Hospital,
Chennai, this Court directed shifting of the detenu from the Government
Hospital to Cauvery Hospital, Chennai so as to undergo the treatment at the
Hospital of the choice of the detenu at their own costs.
8. Thereafter, further developments are that the detenu was shifted to
Cauvery Hospital and it is represented that he had undergone the said
surgery and treatment and is presently continuing his treatment in the said
Hospital. On 16.06.2023, the respondents pressed for custody of the detenu
and an order has also been passed by the learned Principal Sessions Judge,
Chennai granting the custody, but, however, on conditions not to remove
him from the Hospital and to act as per the fitness directions of the treating
Doctors.
9. Aggrieved by the order of this Court, dated 15.06.2023,
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entertaining the Habeas Corpus Petition as well as granting interim relief of
shifting of the detenu to a Private Hospital and also the conditions imposed
by the learned Principal Sessions Judge, Chennai in the order granting
custody, two Special Leave Petitions were preferred by the respondents on
the file of the Hon'ble Supreme Court of India and the same came up for
hearing on 21.06.2023 and the Hon'ble Supreme Court of India had passed
an order directing this Court to dispose off the Habeas Corpus Petition as
the questions have been framed and the mater was posted for hearing on
22.06.2023 and adjourned Special Leave Petitions to 04.07.2023. Pursuant
thereto, the parties have filed their additional pleadings in the form of
additional affidavit, counter affidavit, rejoinder and additional counter
affidavit and this Court took up the matter for hearing.
E. Submissions before this Court :
10. Heard Mr.N.R.Elango and Mr.Mukul Rohatgi, learned Counsel for
the petitioner, Mr.Tushar Mehta, learned Solicitor General of India,
Mr.A.R.L.Sunderasan, learned Additional Solicitor General of India for the
respondents.
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11. Mr.N.R.Elango, learned Senior Counsel for the petitioner made
following submissions :
(a) The petition for Habeas Corpus Petition is maintainable even after
an order of judicial remand if it is established that the order of remand,
authorising the judicial custody, is illegal and without application of mind;
(b) The order of remand is illegal and without application of mind
because__
(i) Inspite of bringing it to the notice of the learned Special Judge at
the time of remand that the provisions of the Cr.P.C., namely, Sections 41
and 41-A of Cr.P.C., and the other provisions were not complied with by
the respondents, still mechanically, judicial custody was unauthorised.
(ii) The fundamental rights of the detenu under Article 22 of the
Constitution of India was violated as at the time of the arrest, the grounds of
arrest were not informed to the detenu. His relatives were also not informed
of his arrest.
(iii) When these infirmities were brought to the notice of the learned
Principal Sessions Judge by filing an application to reject the remand, the
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learned Judge, without even considering the objections, remanded the
detenu and thereafter simply disposed off the petition by recording that
already she had remanded the detenu and therefore, the order of remand is
absolutely mechanical and without application of mind.
(iv) such subsequent Order will not wipe out the constitutional
violation of Article 22 of the Constitution of India and would only render
the Remand illegal and still this Court would issue rule of Habeas Corpus
enlarging the detenu within the custody.
(v) Even after passing of the interim order, the Enforcement
Directorate, inspite of objections on behalf of the petitioner that this Court
is in seizin of the matter, pressed for Police custody, by virtually
overruling the order of this Court, the learned Principal Sessions Judge has
also grant an order on 16.06.2022 entrusting the detenu to Police custody,
thus virtually sitting on appeal over the order of this Court.
(vi) The Enforcement Directorate is not vested with the powers of the
Station House Officer and therefore, they cannot be termed as Police
officers and what is contemplated under Section 167 of Cr.P.C., is only
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Police custody and therefore, the other Investigating Agency, not being a
Police officer, is not entitled to pray for custody of the detenu at all. The
P.M.L.A does not expressly grant the powers to act as a Station House
Officer as is granted in other enactments and thus, no police custody can be
claimed by them;
(vii) In any event, the Police custody can be granted as pr Section 167
of Cr.P.C., only in the first 15 days of judicial custody and the said period
of first 15 days is an inviolable rule enuring the benefit of the detenu and
therefore, there is no question of any exclusion of the period of treatment in
the Hospital for the purposes of granting the Police custody.
(viii) From the grounds of arrest, it can be seen that there is an
interpolation and material alteration of the document by writing about
informing of the relatives about the arrest at the end of the grounds of arrest
which is supposed to be ready at the time of arrest i.e., at 1.39 A.M itself
while the facts mentioned therein namely, sending of e-mail happened only
after 8.00 A.M in the morning. Therefore, these facts would demonstrate
that the respondents authorities never cared to comply with Article 22 of the
Constitution of India and even the grounds of arrest which is now sought to
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be ready and not accepted by the detenu are all cooked up later.
(ix) The grounds of arrest bears the Court seal date as 16.06.2023 and
therefore, it was not before the Court on 14.06.2023 at the time of remand.
Therefore, after subjecting the detenu to grave torture by detaining from the
early morning on 13.06.2023, the respondents officials are belatedly
creating records to show compliances which should be forthwith rejected by
this Court and the Habeas Corpus should be allowed.
12. In support of his submissions, the learned Senior Counsel relied
upon the judgment of the Hon'ble Supreme Court of India in the matter of
Madhu Limaye and Ors.1, more specifically upon the paragraph Nos.9, 10
and 12 of the said judgment for the proposition that the Habeas Corpus
Petition is maintainable if the remand orders are patently illegal. The
learned Senior Counsel also relied upon the judgment of this Court in
R.Gurusamy Vs. State represented by the Deputy Superintendent of Police
CB CID and Anr.2, more specifically relying upon the paragraph Nos.12
and 13 of the said judgment for the same proposition. The learned Senior
1 (1969) 1 SCC 292
2 2003 SCC OnLine Mad 1193
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Counsel relied upon the judgment of the Hon'ble Supreme Court of India in
Gautam Navlakha Vs. National Investigation Agency1, more specifically
relying upon the paragraph Nos.66 to 71 of the said judgment to contend
about the maintainability of the Habeas Corpus Petition and submit that
maintainability and entertainability are two distinct questions and the
Habeas Corpus Petition will always be maintainable. The learned Senior
Counsel further relied upon the judgment of the Hon'ble Supreme Court of
India in Satender Kumar Antil Vs. Central Bureau of Investigation and
Anr.2 to contend that Section 41-A of Cr.P.C., compliance is mandatory
even for the Enforcement Directorate and non-compliance thereof vitiates
the entire arrest and the subsequent remand.
13. The learned Senior Counsel by taking this Court through
judgment of the Hon'ble Supreme Court of India in Vijay Madanlal
Choudhary and Ors. Vs. Union of India and Ors.3 and more specifically
paragraph Nos.9, 33, 142, 325, 326 and 449 of the said judgment, would
1 2021 SCC OnLine SC 382
2 (2022) 10 SCC 51
3 2022 SCC OnLine SC 929
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contend that the Hon'ble Supreme Court of India did not specifically rule
that the provisions under Sections 41 and 41-A of Cr.P.C., do not apply to
the P.M.L.A. The learned Senior Counsel drew the attention of this Court to
the Sections 4(2), 5, 40, 41, 41-A, 50 and the other provisions relating to
arrest in the Code of Criminal Procedure. The learned Senior Counsel
relied upon the Sections 19, 65 and 71 of the P.M.L.A. After placing
reliance on the aforesaid provisions, the learned Senior Counsel would draw
the proposition that firstly, the importance of information of grounds of
arrest and intimation to relatives can be known that notwithstanding it is
there in the statute namely, the old Code of Criminal Procedure even before
the drafting of the Constitution of India, the same were elevated as
fundamental right only because the makers of the constitution thought that
no provision should be made taking away these valuable rights.
14. He would submit that on a perusal of the structure of the P.M.L.A,
it would be clear that even the powers to act as Station House Officer,
which is present in many other central enactments, is conspicuously absent
and is not given to the Enforcement Directorate when it comes for
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enforcement of the provision of the P.M.L.A. The learned Senior Counsel
would therefore submit that when Section 65 of the P.M.L.A specifically
makes the provisions of the Code of Criminal Procedure relating to arrest
applicable to the offence by their admission that Section 41-A of Cr.P.C.,
need not be complied with, the case of the petitioner is liable to be allowed.
Further, by drawing the attention of the Court to the Tamil Nadu Police
Standing Orders, more specifically to PSO 637, that it is only the officers in
charge of Police Stations will be personally responsible for the accused who
are in Police custody, the learned Senior Counsel would submit that when
there is no concept of functioning as the Station House Officer under
P.M.L.A, there is no question of grant of any Police custody. He would
submit that the Hon'ble Supreme Court of India has also expressly held in
Tofan Singh Vs. State of Tamil Nadu1 that the respondents, Enforcement
Directorate, are not Police officers within the meaning of the term. The
learned Senior Counsel specifically relied upon the judgment of the Hon'ble
Supreme Court of India in Central Bureau of Investigation, Special
Investigation Cell-I, New Delhi Vs. Anupam J. Kulkarni 2 for the
1 (2021) 4 SCC 1
2 (1992) 3 SCC 141
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proposition that 15 days rule from the first date of judicial remand is
inviolable even in circumstances similar to the present one and therefore,
there is no question of any extension of the time for Police custody.
15. Mr.Tushar Mehta, learned Solicitor General of India for the
respondents would make the following submissions :
(a) Habeas Corpus Petition is a remedy against the respondents in the
petition who are invariably the Executive or such other private entities who
have or who authorise the custody of the detenu, directing them to produce
the detenu before the Court and set the detenu at liberty if such custody is
illegal. In this case, there is no question of direction to the Enforcement
Directorate since the detenu is no more in their custody and is in the judicial
custody of the Court. Therefore, Habeas Corpus Petition is not
maintainable at all once the Judicial Order of Remand is passed.
(b) The passing of the order of judicial remand need not precede the
filing of the Habeas Corpus Petition and even as of the date of return of
notice i.e., subsequently also, once the Order authorising the detenu to
judicial custody comes into existence, the maintainability and
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entertainability of the Habeas Corpus Petition ends at that moment and no
further relief can be granted in the Habeas Corpus in respect of any
allegations / violations prior to such remand.
(c) Even the illegalities alleged in respect of the remand order can
only be canvassed by way of appropriate appeal / revision by specifically
impugning the said Remand Order in the higher fora and the same cannot be
gone into in a petition for Habeas Corpus and therefore, the very
entertainment of the Hebeas Corpus petition is unwarranted and incorrect in
law and the Habeas Corpus Petition is liable to be dismissed as not
maintainable.
(d) In any event, there is no illegality or violation in the instant case.
There was no violation or non-compliance of the Article 22 of the
Constitution of India as the grounds of the arrest was duly reduced into
writing at the time of arrest and was attempted to be served on the accused.
He not only refused to accept the same, but, also, behaved in high handed
manner, threatening the respondents officials stating that he is a Minister.
(e) There is no question of compliance of Section 41 or 41-A of
Cr.P.C., as P.M.L.A is a complete code and it contains specific provisions in
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respect of arrest in the form of Section 19. Section 19 authorises the power
of arrest only to higher officials with greater responsibility and also
prescribes a specific procedure of intimating about the same to the
adjudicating authority and thus, provides enhanced safeguards and a
different procedure in respect of arrest and to the said extent, the provisions
of arrest in the Code of Criminal Procedure is not applicable to P.M.L.A.
This position has been specifically laid down by the Hon'ble Supreme Court
of India in Vijay Madanlal Choudhary's case (cited supra).
(f) Further, on a perusal of the counter affidavit as well as the grounds
of arrest, it would be clear that the averment therein even satisfies the
mandate of Section 41 of Cr.P.C., inasmuch as the arrest was not only made
for the involvement of an offence under Section 4 of P.M.L.A, but is also
made after recording the satisfaction that the detenu / accused was not co-
operating with the Investigating Agency and was even threatening
Investigating Agency and was not furnishing the details about the money
trail and proceeds of crime and thus, hampering the investigation and there
is likelihood of the money trail being lost which is very important in the
case of money laundering. Therefore once the necessity is satisfied, the
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arrest is in order.
(g) Ample proof of intimation of the grounds of arrest, at the time of
arrest, is demonstrated by the memo of arrest, which was drawn up in the
presence of independent witnesses and in any event, it can be seen that at
the time of remand itself, the learned Principal Sessions Judge herself
records that she had once again informed the grounds of arrest to the detenu.
(h) The language of Section 19 as well as the Article 22 of the
Constitution of India is very clear that it is not exactly at the very moment of
arrest, the compliance should be made, but, it should be as soon as possible.
In this case, it is made at the very moment of arrest and also as soon as
possible in every possible way.
(i) On a perusal of the order of remand, it would be clear that it is not
mechanical and that there is due application of mind. Therefore, even
assuming that Writ of Habeas Corpus is maintainable, none of the grounds
projected are factually tenable and the remand order is not expressly
impugned in the prayer.
(j) As far as the custody of the detenu is concerned, firstly, it is the
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duty of the Enforcement Directorate to thoroughly investigate the serious
offence of the nature and it is in public interest to bring out truth and
unearth the money trail and therefore, custodial interrogation is extremely
essential in this matter.
(k) The Enforcement Directorate did not in any manner act illegal in
praying for the custody as the application was made at the time of remand
itself before the appropriate Court. The Enforcement Directorate is duty
bound to press for the relief because otherwise it will be accused of
violating the 15 days time line. Inspite of the custody being granted, it was
only with conditions and in any event, in view of the medical conditions of
the accused, no interrogation whatsoever was factually possible in the
instant case. The rule relating to 15 days from the first day of remand is not
inviolable. In special circumstances, especially when the delay is not
attributable to the Enforcement Directorate and attributable only to the
detenu, if no custody could be taken in the first 15 days, as such period can
be excluded from computing the 15 days.
(l) The provision relating to custody of the detenu is part of the
provisions relating to the investigation, and thus the procedure in respect of
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remand, custody etc., under Section 167 of Cr.P.C., is specifically made
applicable by virtue of Section 65 of P.M.L.A and therefore, even if the
agency is not a Police officer, still the respondents are entitled for custody
of the detenu.
16. In support of his submissions, the learned Additional Solicitor
General of India placed strong reliance on the judgment of the Hon'ble
Supreme Court of India in Serious Fraud Investigation Office Vs. Rahul
Modi and Anr.1, more specifically on the paragraph Nos.18, 19, 21 and 26
to contend that the Habeas Corpus Petition is not maintainable. The learned
Solicitor General of India also relied upon the judgment of the Hon'ble
Supreme Court of India in Kanu Sanyal Vs. District Magistrate, Darjeeling
and Ors.2, Col. Dr B.Ramachandra Rao Vs. State of Orissa and Ors.3 and
more specifically on the judgment of the Constitution Bench of the Hon'ble
Supreme Court of India in Sanjay Dutt Vs. State through C.B.I., Bombay
(II)4 to contend that the Habeas Corpus Petition is not maintainable.
1 (2019) 5 SCC 266
2 (1974) 4 SCC 141
3 (1972) 3 SCC 256
4 (1994) 5 SCC 410
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Adverting to the facts of Gautam Navlakha's case (cited supra), he would
submit that the question as to the maintainability of the Habeas Corpus
Petition after passing of the Remand Order did not directly and materially
arise and therefore, the observations made in paragraph No.71 of the said
judgment can only be considered as obiter.
17. In support of his proposition that the period of hospitalisation to
be excluded for grant of custody, the learned Solicitor General of India
placed reliance on CBI Vs. Vikas Mishra1. In support of his contention that
the provisions relating to arrest contained in Sections 41 and 41-A of
Cr.P.C., are not applicable and the procedure under Section 19 only is to be
followed, the learned Solicitor General of India placed reliance on Vijay
Madanlal Choudhary (cited supra) more specifically relying upon the
paragraph Nos.3, 9, 23, 142, 323, 324 and 456 of the said judgment.
18. The learned Solicitor General of India placed reliance on
P.Chidambaram Vs. Directorate of Enforcement 2, more specifically on
1 2023 SCC OnLine SC 377
2 (2019) 9 SCC 24
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orders of Enforcement of Police custody of various accused by various
Courts to contend that the respondents / Investigating Agency is entitled for
Police custody.
19. In support of his contention that the Enforcement Directorate
has power to take custody and the provisions of the Code of Criminal
Procedure under Section 167 etc., to be applicable, the learned Solicitor
General of India placed reliance on the judgment of the Hon'ble Supreme
Court of India in Directorate of Enforcement Vs. Deepak Mahajan and
Anr.1 more specifically relying upon the paragraph Nos.134 and 136. The
Learned Solicitor General of India also circulated certain Orders of the High
Courts, excluding the period in which accused could not be available for
grant of custody in the first 15 days.
20. Mr.Mukul Rohatgi, learned Senior Counsel leading the petitioner
in making the rejoinder arguments while reiterating the propositions as
argued by the learned Senior Counsel Mr.N.R.Elango, would make the
1 (1994) 3 SCC 440
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following submissions :
(a) Adverting to the plea for exclusion of time spent in the Hospital,
he would specifically contend that the period of 15 days is an inviolable
rule. He would further submit that the fact situation in Anupam J.
Kulkarni's case (cited supra) is exactly same as of the instant case. The law
laid down by the Anupam J. Kulkarni's case (cited supra) held the field for
so long and as a matter of fact, reiterated in a three bench judgment of the
Hon'ble Supreme Court of India Budh Singh Vs. State of Punjab1. The
inviolability of the provisions enuring to the benefit of the accused such as
default bail etc., is considered by the judgment of the Hon'ble Supreme
Court of India in S.Kasi Vs. State through Inspector of Police,
Samaynallur Police Station, Madurai District2, whereunder, it is held that
even for reasons like Covid-19 Pandemic cannot affect the outer time limit
and the right of the accused with respect to default bail.
(b) Relying upon the judgment of the Hon'ble Supreme Court of India
in Satyajt Ballubhai Desai and Ors. Vs. State of Gujarat 3, the learned
1 (2000) 9 SCC 266
2 (2021) 12 SCC 1
3 (2014) 14 SCC 434
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Senior Counsel would submit that the Police custody is only an exception
and judicial custody is the normal rule. Therefore, the learned Senior
Counsel would submit that the ratio laid down in all the above judgments if
taken into account, the law which will hold the field as on date is that no
exclusion of time can be granted. Adverting to the judgment of the Hon'ble
Supreme Court of India relied by the learned Solicitor General of India in
CBI Vs. Vikas Mishra's case (cited supra), the learned Senior Counsel
would specifically plead to record his arguments that having noted about the
earlier rulings of the Hon'ble Supreme Court of India and having doubted
the proposition, the same could have only been referred to a larger bench
and till the larger bench answers the issue only, the existing rule could have
been followed by the Hon'ble Supreme Court of India. Alternatively, he
would submit that when a larger bench consisting of three judges has taken
a view in Budh Singh's case (cited supra), the High Court should only
follow the larger bench and refuse the extension of time.
(c) Reiterating maintainability of the Habeas Corpus Petition, the
learned Senior Counsel would once again submit that the reading of Madhu
Limaye's case (cited supra) and Gautam Navlakha's case (cited supra) by
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the learned Solicitor General of India is incorrect and they apply in all force
to the instant case on hand.
(d) Again placing reliance on Arnesh Kumar Vs. State of Bihar and
Anr.1 and Satender Kumar Antil's case (cited supra), the learned Senior
Counsel would submit that essentially arrest is violative of Section 41-A of
Cr.P.C., and once it violates, even though the learned Solicitor General of
India is right in contending that the Court has to consider the subsequent
judicial remand as on date of return of notice, still the remand order is
susceptible of challenge in the present proceedings and if the illegality is
demonstrated, the Habeas Corpus Petition is liable to be allowed.
(e) He would place the strong reliance on date of the Court Stamp on
the grounds of arrest as 16.06.2023 and submitted that in criminal cases, it
is the Court's date seal/stamp which is crucial and speaks about the date on
which the document which is submitted to the Court. Therefore, it could not
have been on the file of the learned Principal Sessions Judge, Chennai at the
time of remand on 14.06.2023 and therefore, would pray that the Habeas
Corpus Petition be allowed.
1 (2014) 8 SCC 273
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(f) The learned Senior Counsel would submit that in any event,
considering such grave illegalities pointed out on behalf of the petitioner
and the health condition of the detenu, this Court alternatively can consider
grant of bail to the detenu in the Habeas Corpus Petition itself.
21. Mr.A.R.L.Sunderasan, learned Additional Solicitor General of
India would make the following submissions :
(a) The grounds of arrest were, in fact, shown to the learned Principal
Sessions Judge, Chennai by producing the file as on the date of remand
itself. Without perusing the said grounds of arrest, there is no way the
learned Presiding Officer could have recorded about the said fact in the
Remand Order itself. He would submit that initials are there with the date
as 14.06.2023 in the grounds of arrest. Merely because the date stamp was
made subsequently on 16.06.2023 in the copy produced, it cannot be said
that the document itself was not in existence as on 14.06.2023.
(b) The condition of the detenu was such that absolutely there was not
even a single question which can be made nor he can be accessed in view of
the nature of the treatment which is said to have been given to the accused.
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(c) Placing reliance on the documents, including grounds of arrest, e-mail
communication sent by the petitioner herself, e-mails which are sent to the
relatives and the other documents etc., he would factually refute the
allegations of non-compliance of Article 22.
22. On behalf of both the sides, apart from the above judgments
which were elaborately dealt with, the other judgments which are on the
points canvassed were also cited before us. Both the sides learned Senior
Counsel not only made elaborate submissions, but, also circulated written
submissions encapsulating their oral submissions.
F. Questions for consideration :
23. I have considered the rival submissions made on either side and
perused the material records of the case. The following questions arise for
consideration:-
(i) Whether or not a Writ of Habeas Corpus would be maintainable
after passing of Judicial Order of Remand of the detenu and if so, on what
premises?
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(ii) Whether the petitioner herein had made out a case for exercise of
powers under Article 226 of the Constitution of India to set the detenu free?
(iii) If the detenu is not be set free, then whether the period from the
moment of his arrest on 14.06.2023, whereby, he is admitted in the Hospital
till his discharge is to be excluded while computing the time of initial 15
days from the date of remand to judicial custody under Section 167 of
Cr.P.C., so as to entrust him for the custody of the respondents ?
(iv) What reliefs are to be granted in the present Habeas Corpus
Petition?
G. Question No.i :
24. To answer this question, it is necessary to advert to the relevant
decisions which are relied upon by the learned Senior Counsel on either
side. In Madhu Limaye's case (cited supra), the Hon'ble Supreme Court of
India held that the Orders of Remand would not cure grave constitutional
infirmities. It is essential to extract paragraph No.12 which reads as
hereunder :
" 12. Once it is shown that the arrests
made by the police officers were illegal, it
was necessary for the State to establish that at
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the stage of remand the Magistrate directed
detention in jail custody after applying his
mind to all relevant matters. This the State
has failed to do. The remand orders are
patently routine and appear to have been
made mechanically. All that Mr Chagla has
said is that if the arrested persons wanted to
challenge their legality the High Court should
have been moved under appropriate
provisions of the Criminal Procedure Code.
But it must be remembered that Madhu
Limaye and others have, by moving this Court
under Article 32 of the Constitution,
complained of detention or confinement in jail
without compliance with the constitutional
and legal provisions. If their detention in
custody could not continue after their arrest
because of the violation of Article 22(1) of the
Constitution they were entitled to be released
forthwith. The orders of remand are not such
as would cure the constitutional infirmities.
This disposes of the third contention of
Madhu Limaye."
(emphasis supplied)
25. The judgment of this Court in R.Gurusamy's case (cited supra)
had in the paragraph Nos.12 and 18 laid down the importance of the Article
22 of the Constitution of India and the right of the arrestee to be informed of
the full particulars of the offence, for which, he was arrested and holding
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that Writ of Habeas Corpus would be maintainable and initial illegality,
which is grave in nature, has to be looked into inspite of the remand.
26. The Hon'ble Supreme Court of India in Kanu Sanyal's case (cited
supra) held that irrespective of the pointers of legality or otherwise with
regard to the initial detention, when there is a subsequent order making the
detention as legal, in the application for Habeas Corpus, the Court is not
concerned with the same. It is essential to extract the paragraph No.4 of the
said judgment :
“ 4. These two grounds relate exclusively
to the legality of the initial detention of the
petitioner in the District Jail, Darjeeling. We
think it unnecessary to decide them. It is now
well settled that the earliest date with
reference to which the legality of detention
challenged in a habeas corpus proceeding
may be examined is the date on which the
application for habeas corpus is made to the
Court. This Court speaking through
Wanchoo, J., (as he then was) said in A.K.
Gopalan v. Government of India: [AIR 1966
SC 816 : (1966) 2 SCR 427 : 1966 Cri LJ
602]
“It is well settled that in dealing
with the petition for habeas corpus
the Court is to see whether the
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detention on the date on which the
application is made to the Court is
legal, if nothing more has
intervened between the date of the
application and the date of the
hearing.”
In two early decisions of this Court, however,
namely, Naranjan Singh v. State of Punjab
[(1952) 1 SCC 118 : AIR 1952 SC 106 :
1952 SCR 395 : 1952 Cri LJ 656] and Ram
Narayan Singh v. State of Delhi [1953 SCR
652 : AIR 1953 SC 277 : 1953 Cri LJ 1113]
a slightly different view was expressed and
that view was reiterated by this Court in B.R.
Rao v. State of Orissa [(1972) 3 SCC 256,
259 : 1972 SCC (Cri) 481] where it was said
(at p. 259, para 7):
“in habeas corpus proceedings the
Court is to have regard to the
legality or otherwise of the
detention at the time of the return
and not with reference to the
institution of the proceedings”.
and yet in another decision of this Court in
Talib Hussain v. State of Jammu & Kashmir
[(1971) 3 SCC 118, 121] Mr Justice Dua,
sitting as a Single Judge, presumably in the
vacation, observed that (at p. 121, para 6):
“in habeas corpus proceedings the
Court has to consider the legality of
the detention on the date of the
hearing.”
Of these three views taken by the Court at
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different times, the second appears to be
more in consonance with the law and
practice in England and may be taken as
having received the largest measure of
approval in India, though the third view also
cannot be discarded as incorrect, because an
inquiry whether the detention is legal or not
at the date of hearing of the application for
habeas corpus would be quite relevant, for
the simple reason that if on that date the
detention is legal, the Court cannot order
release of the person detained by issuing a
writ of habeas corpus. But, for the purpose of
the present case, it is immaterial which of
these three views is accepted as correct, for it
is clear that, whichever be the correct view,
the earliest date with reference to which the
legality of detention may be examined is the
date of filing of the application for habeas
corpus and the Court is not, to quote the
words of Mr Justice Dua in B.R. Rao v. State
of Orissa, “concerned with a date prior to
the initiation of the proceedings for a writ of
habeas corpus”. Now the writ petition in the
present case was filed on January 6, 1973
and on that date the petitioner was in
detention in the Central Jail, Vizakhapatnam.
The initial detention of the petitioner in the
District Jail, Darjeeling had come to an end
long before the date of the filing of the writ
petition. It is, therefore, unnecessary to
examine the legality or otherwise of the
detention of the petitioner in the District Jail,
Darjeeling. The only question that calls for
consideration is whether the detention of the
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petitioner in the Central Jail, Vizakhapatnam
is legal or not. Even if we assume that
grounds A and B are well founded and there
was infirmity in the detention of the petitioner
in the District Jail, Darjeeling, that cannot
invalidate the subsequent detention of the
petitioner in the Central Jail, Vizakhapatnam.
See para 7 of the judgment of this Court in
B.R. Rao v. State of Orissa. The legality of
the detention of the petitioner in the Central
Jail, Vizakhapatnam would have to be judged
on its own merits. We, therefore, consider it
unnecessary to embark on a discussion of
grounds A and B and decline to decide them.”
(emphasis supplied)
27. The Hon’ble Supreme Court of India in Serious Fraud
Investigation Office’s case (cited supra), while considering the ex post
facto extension granted by the Central Government, by which only, the
Agency had jurisdiction to proceed further, considered the issue in detail
and held that the Habeas Corpus Petition will no longer be maintainable
once there is an Order authorising judicial custody as the custody is the
pursuant to the custodial judicial function exercised by a competent Court.
The final conclusion reached on the subject exhibits in paragraph No.26
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which is extracted hereunder for ready reference :
“ 26. It is true that the decision in
Dashrath Rupsingh Rathod [Dashrath
Rupsingh Rathod v. State of Maharashtra,
(2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 :
(2014) 3 SCC (Cri) 673] was in the context of
a criminal complaint under Section 138 of the
Negotiable Instruments Act and not while
dealing with an issue of maintainability of a
writ petition under Article 226 of the
Constitution. It cannot, therefore, be said that
in the present case, the High Court completely
lacked jurisdiction to entertain the petition.
However, since the challenge was with
respect to the detention pursuant to valid
remand orders passed by the Judicial
Magistrate and the Special Court, Gurugram,
in our considered view, the High Court should
not have entertained the challenge. If the act
of directing remand is fundamentally a
judicial function, correctness or validity of
such orders could, if at all, be tested in
properly instituted proceedings before the
appellate or revisional forum. In the
circumstances, even if the arrests were
effected within the jurisdiction of the High
Court, since the accused were produced
before a competent court in pursuance of
Sections 435, 436 of the 2013 Act, the High
Court ought not to have entertained the writ
petition. However, since the High Court
considered the matter from the standpoint
whether the initial order of arrest itself was
valid or not and then found that such illegality
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could not be sanctified by subsequent order of
remand, we may deal with that question now.”
(emphasis supplied)
28. The Hon’ble Supreme Court of India considered the entire issue
in great detail in Manubhai Ratilal Patel Vs. State of Gujarat 1 and the
relevant paragraphs are extracted hereunder :
“ 20. After so stating, the Bench in Kanu
Sanyal case [(1974) 4 SCC 141 : 1974 SCC
(Cri) 280] opined that for adjudication in the
said case, it was immaterial which of the three
views was accepted as correct but eventually
referred to para 7 in B. Ramachandra Rao
[(1972) 3 SCC 256 : 1972 SCC (Cri) 481 :
AIR 1971 SC 2197] wherein the Court had
expressed the view in the following manner:
(SCC p. 259)
“7.… in habeas corpus proceedings
the court is to have regard to the
legality or otherwise of the
detention at the time of the return
and not with reference to the
institution of the proceedings.”
Eventually, the Bench ruled thus:
(Kanu Sanyal case [(1974) 4 SCC 141 : 1974
SCC (Cri) 280] , SCC p. 148, para 5)
“5.… The production of the
petitioner before the Special Judge,
Visakhapatnam, could not,
therefore, be said to be illegal and
1 (2013) 1 SCC 314
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his subsequent detention in the
Central Jail, Visakhapatnam,
pursuant to the orders made by the
Special Judge, Visakhapatnam,
pending trial must be held to be
valid. This Court pointed out in
Col. B. Ramachandra Rao v.State
of Orissa [(1972) 3 SCC 256 :
1972 SCC (Cri) 481 : AIR 1971 SC
2197] (SCC p. 258, para 5) that a
writ of habeas corpus cannot be
granted
‘5....where a person is committed to
jail custody by a competent court
by an order which prima facie does
not appear to be without
jurisdiction or wholly illegal’.”
21.The principle laid down in Kanu
Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri)
280] , thus, is that any infirmity in the
detention of the petitioner at the initial stage
cannot invalidate the subsequent detention
and the same has to be judged on its own
merits.
22. At this juncture, we may profitably
refer to the Constitution Bench decision in
Sanjay Dutt v. State [(1994) 5 SCC 410 :
1994 SCC (Cri) 1433] wherein it has been
opined thus: (SCC p. 442, para 48)
“48. … It is settled by Constitution
Bench decisions that a petition
seeking the writ of habeas corpus
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on the ground of absence of a valid
order of remand or detention of the
accused, has to be dismissed, if on
the date of return of the rule, the
custody or detention is on the basis
of a valid order.”
23. Keeping in view the aforesaid
concepts with regard to the writ of habeas
corpus, especially pertaining to an order
passed by the learned Magistrate at the time
of production of the accused, it is necessary to
advert to the schematic postulates under the
Code relating to remand. There are two
provisions in the Code which provide for
remand i.e. Sections 167 and 309. The
Magistrate has the authority under Section
167(2) of the Code to direct for detention of
the accused in such custody i.e. police or
judicial, if he thinks that further detention is
necessary.
24. The act of directing remand of an
accused is fundamentally a judicial function.
The Magistrate does not act in executive
capacity while ordering the detention of an
accused. While exercising this judicial act, it
is obligatory on the part of the Magistrate to
satisfy himself whether the materials placed
before him justify such a remand or, to put it
differently, whether there exist reasonable
grounds to commit the accused to custody and
extend his remand. The purpose of remand as
postulated under Section 167 is that
investigation cannot be completed within 24
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hours. It enables the Magistrate to see that the
remand is really necessary. This requires the
investigating agency to send the case diary
along with the remand report so that the
Magistrate can appreciate the factual
scenario and apply his mind whether there is
a warrant for police remand or justification
for judicial remand or there is no need for any
remand at all. It is obligatory on the part of
the Magistrate to apply his mind and not to
pass an order of remand automatically or in a
mechanical manner.
…….
31. Coming to the case at hand, it is
evincible that the arrest had taken place a day
prior to the passing of the order of stay. It is
also manifest that the order of remand was
passed by the learned Magistrate after
considering the allegations in the FIR but not
in a routine or mechanical manner. It has to
be borne in mind that the effect of the order
[Manubhai Ratilal Patel v. State of Gujarat,
Criminal Misc. Application No. 10303 of
2012, order dated 17-7-2012 (Guj)] of the
High Court regarding stay of investigation
could only have a bearing on the action of the
investigating agency. The order of remand
which is a judicial act, as we perceive, does
not suffer from any infirmity. The only ground
that was highlighted before the High Court as
well as before this Court is that once there is
stay of investigation, the order of remand is
sensitively susceptible and, therefore, as a
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logical corollary, the detention is
unsustainable. It is worthy to note that the
investigation had already commenced and as
a resultant consequence, the accused was
arrested. Thus, we are disposed to think that
the order [Manubhai Ratilal Patel v. State of
Gujarat, Special Criminal Application No.
2207 of 2012, decided on 7-8-2012 (Guj)] of
remand cannot be regarded as untenable in
law. 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. As has
been stated in B. Ramachandra Rao [(1972)
3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971
SC 2197] and Kanu Sanyal [(1974) 4 SCC
141 : 1974 SCC (Cri) 280], the court is
required to scrutinise the legality or otherwise
of the order of detention which has been
passed. Unless the court is satisfied that a
person has been committed to jail custody by
virtue of an order that suffers from the vice of
lack of jurisdiction or absolute illegality, a
writ of habeas corpus cannot be granted. It is
apposite to note that the investigation, as has
been dealt with in various authorities of this
Court, is neither an inquiry nor trial. It is
within the exclusive domain of the police to
investigate and is independent of any control
by the Magistrate. The sphere of activity is
clear cut and well demarcated. Thus viewed,
we do not perceive any error in the order
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passed by the High Court refusing to grant a
writ of habeas corpus as the detention by
virtue of the judicial order passed by the
Magistrate remanding the accused to custody
is valid in law.”
(emphasis
supplied)
29. The Hon’ble Supreme Court of India in Gautam Navlakha’s case
(cited supra) framed the following question at paragraph N.66 of the said
judgment :
“ Whether a Writ of Habeas Corpus lies
against an order of remand under Section
(167) of Cr.P.C.”
30. After considering all the earlier pronouncements, held in
paragraph No.71 as follows :
“ 71. Thus, we would hold as follows:
If the remand is absolutely illegal or the
remand is afflicted with the vice of lack of
jurisdiction, a Habeas Corpus petition would
indeed lie. Equally, if an order of remand is
passed in an absolutely mechanical manner,
the person affected can seek the remedy of
Habeas Corpus. Barring such situations, a
Habeas Corpus petition will not lie.
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31. Thus, the law relating to entertainment of a petition for Habeas
Corpus is no longer res integra and can be summarised as follows :
(i) The petition for Habeas Corpus is only directed against the
executive or parties who are or who authorised the custody of the detenu,
to produce them before the Court and set the detenu at liberty, if such
custody is illegal and not authorised by law;
(ii) The Order of Remand is a judicial function and therefore, on
exercise of such judicial function, normally, the Habeas Corpus Petition is
not maintainable;
(iii) Such authorisation of valid custody can even be subsequent to
the alleged act of illegal detention or even be subsequent to the filing of the
Habeas Corpus Petition, but, if on the date of return of notice / taking up the
Habeas Corpus for considertion, if the detention is or becomes legal, then,
other questions would no longer be the concern of the Court in the Habeas
Corpus Petition;
(iv) The illegalities or the procedural violations etc., in respect of the
said judicial Order of Remand can only be canvassed by way of appropriate
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appeal or revision proceedings under the Code of Criminal Procedure and
not in the Habeas Corpus Petition;
(v) However, absolute illegality, total non-application of mind or lack
or jurisdiction and wholesale disregard to the fundamental rights in a given
facts and circumstances of a case would be an exception where the Habeas
Corpus Court can examine the illegality of arrest and detention (Paragraph
No.21 of Madhu Limaye'; Pargraph 31 of Manubhai Ratilal Patel and
paragraph No.71 of Gautam Navlakha).
Thus, I answer the question holding that a petition for Habeas Corpus
agitating to produce the detenu and set him at liberty normally would not be
maintainable after the order of judicial remand, but, only under the
exceptional circumstances of absolute illegality as state above.
H. Question No.ii :
32. Now, submissions are made on behalf of the petitioner, the
present case comes within the exceptional circumstances and therefore, the
Writ of Habeas Corpus should issue. First, we shall deal with each and
every violation that is pleaded before deciding the question.
(i) Violation of Article 22(1) :
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It is the case of the petitioner that the detenu was not informed about
the grounds of arrest. In this case, I have to consider the said arguments
from the factual background that the ECIR/MDSZO/21/2021 was recorded
on 29.07.2021 and repeated summons have been sent and replies in the form
of request have been on behalf of the detenu as early as in the year 2021.
Thereafter, a Writ Petition was filed by one Shanmugam regarding the same
and in his reply, dated 29.04.2022, the detenu had conveyed that this Court
stayed the investigation and he need not to appear. Finally, the case was
heard in detail by the Hon’ble Supreme Court of India and by its judgment,
dated 16.05.2023, the order of this Court was set aside and the Enforcement
Directorate was permitted to proceed further in the matter. Thus, the
petitioner was in the absolute know of things. That is only preliminary. It
was still the duty of the Enforcement Directorate to have informed the
grounds of arrest. In this regard, a perusal of the grounds of arrest would
clearly show that in detail what is the basis for registering of E.C.I.R and
what was the grounds of arrest are categorically mentioned in the same.
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33. It is the case of the respondents that the same was also orally
informed and when it was attempted to be served, the detenu did not accept
the same. From the very nature of the allegations in this case that there was
non-cooperation and threat and allegation of manhandling leading to a
drama at the time of arrest, it can be prima facie concluded that there is no
ground to discard the veracity in the averment made on behalf of the
respondent officials. This apart, the order of remand passed by the learned
Principal Sessions Judge is extracted hereunder:
“At the request of the Special Public
Prosecutor, Enforcement Directorate,
Chennai filed along with ECIR, Remand
Report and other documents I came down to
Tamil Nadu, Government Multi Super
Speciality Hospital, Omanthur, Chennai by
3.30 p.m. Dr. J. CECILY MARY MAJELLA,
Associate Professor, Cardiology certified that
the accused Senthil Balaji is concisous and
oriented. Then I met Thiru. V. Senthil Balaji,
the accused in the ICU ward of the said
hospital and enquired in the presence of Dr.
J. CECILY MARY MAJELLA. Heard the
Special Public Prosecutor and the Senior
Advocate Mr.N.R. Elango, who appeared for
the accused. Grounds of Arrest was said to
have been conveyed by the Investigating
officer, but the accused denied to
acknowledge and signed the same. Aslo
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relatives of the accused are said to have been
not available in the place of arrest and they
have been informed through SMS and Email
since they didn't pick the phone call. Proof
has also been produced. I informed the
accused about the grounds of arrest and his
right of legal assistance. The accused
complained that he was man handled by the
ED officials but no complaint of any bodily
injury. The prosecution has established Prima
facie case against the accused for the offences
u/s. 3 of Prevention of Money Laundering Act,
punishable u/s.4 of the said Act. Hence the
accused is remanded to Judicial custody till
28.06.2023.”
34. This apart, copies of e-mails sent to the relatives of the detenu
including the petitioner herein and SMS messages sent through telephone
numbers are also produced. Therefore, I am satisfied that there due
compliance of the Article 22 of the Constitution of India and the provisions
in the Code of Criminal Procedure relating to the same in this regard.
(ii) Non-following of Sections 41 and 41-A of Cr.P.C., :
35. To consider the submissions, it is essential to extract Sections
4(2), 5, 41 and 41-A of Cr.P.C., which read as follows :
“ 4. Trial of offences under the Indian
Penal Code and other laws.—(1) ...
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(2) All offences under any other law shall be
investigated, inquired into, tried, and
otherwise dealt with according to the same
provisions, but subject to any enactment for
the time being in force regulating the manner
of place of investigating, inquiring into, trying
or otherwise dealing with such offences.
5. Saving.—Nothing contained in this
Code shall, in the absence of a specific
provision to the contrary, affect any special or
local law for the time being in force, or any
special jurisdiction or power conferred, or
any special form of procedure prescribed, by
any other law for the time being in force.
41. When police may arrest without
warrant.— (1) Any police officer may
without an order from a Magistrate and
without a warrant, arrest any person—
(a) who commits, in the presence of a
police officer, a cognizable offence;
(b) against whom a reasonable
complaint has been made, or credible
information has been received, or a
reasonable suspicion exists that he has
committed a cognizable offence punishable
with imprisonment for a term which may be
less than seven years or which may extend to
seven years whether with or without fine, if
the following conditions are satisfied, namely:
—
(i) the police officer has reason to
believe on the basis of such complaint,
information, or suspicion that such person
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has committed the said offence;
(ii) the police officer is satisfied that
such arrest is necessary—
(a) to prevent such person from
committing any further offence; or
(b) for proper investigation of the
offence; or
(c) to prevent such person from
causing the evidence of the offence to
disappear or tampering with such
evidence in any manner; or
(d) to prevent such person from
making any inducement, threat or
promise to any person acquainted with
the facts of the case so as to dissuade
him from disclosing such facts to the
Court or to the police officer; or
(e) as unless such person is
arrested, his presence in the Court
whenever required cannot be ensured,
and the police officer shall record while
making such arrest, his reasons in
writing:
Provided that a police officer shall, in
all cases where the arrest of a person is not
required under the provisions of this sub-
section, record the reasons in writing for not
making the arrest.;
(ba) against whom credible information
has been received that he has committed a
cognizable offence punishable with
imprisonment for a term which may extend to
more than seven years whether with or
without fine or with death sentence and the
police officer has reason to believe on the
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basis of that information that such person has
committed the said offence;
(c) who has been proclaimed as an
offender either under this Code or by order of
the State Government; or
(d) in whose possession anything is
found which may reasonably be suspected to
be stolen property and who may reasonably
be suspected of having committed an offence
with reference to such thing; or
(e) who obstructs a police officer while
in the execution of his duty, or who has
escaped, or attempts to escape, from lawful
custody; or
(f) who is reasonably suspected of
being a deserter from any of the Armed
Forces of the Union; or
(g) who has been concerned in, or
against whom a reasonable complaint has
been made, or credible information has been
received, or a reasonable suspicion exists, of
his having been concerned in, any act
committed at any place out of India which, if
committed in India, would have been
punishable as an offence, and for which he is,
under any law relating to extradition, or
otherwise, liable to be apprehended or
detained in custody in India; or
(h) who, being a released convict,
commits a breach of any rule made under sub-
section (5) of section 356; or
(i) for whose arrest any requisition,
whether written or oral, has been received
from another police officer, provided that the
requisition specifies the person to be arrested
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and the offence or other cause for which the
arrest is to be made and it appears therefrom
that the person might lawfully be arrested
without a warrant by the officer who issued
the requisition.
(2) Subject to the provisions of section
42, no person concerned in a non-cognizable
offence or against whom a complaint has been
made or credible information has been
received or reasonable suspicion exists of his
having so concerned, shall be arrested except
under a warrant or order of a Magistrate.
41A. Notice of appearance before
police officer.—(1) The police officer shall, in
all cases where the arrest of a person is not
required under the provisions of sub-section
(1) of section 41, issue a notice directing the
person against whom a reasonable complaint
has been made, or credible information has
been received, or a reasonable suspicion
exists that he has committed a cognizable
offence, to appear before him or at such other
place as may be specified in the notice.
(2) Where such a notice is issued to any
person, it shall be the duty of that person to
comply with the terms of the notice.
(3) Where such person complies and
continues to comply with the notice, he shall
not be arrested in respect of the offence
referred to in the notice unless, for reasons to
be recorded, the police officer is of the
opinion that he ought to be arrested.
(4) Where such person, at any time,
fails to comply with the terms of the notice or
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is unwilling to identify himself, the police
officer may, subject to such orders as may
have been passed by a competent Court in this
behalf, arrest him for the offence mentioned in
the notice.”
36. It is essential to extract the relevant provisions of P.M.L.A i.e.,
Sections 19, 62, 65 and 71 which read as hereunder :
“ 19. Power to arrest.—(1) If the
Director, Deputy Director, Assistant Director
or any other officer authorised in this behalf
by the Central Government by general or
special order, has on the basis of material in
his possession, reason to believe (the reason
for such belief to be recorded in writing) that
any person has been guilty of an offence
punishable under this Act, he may arrest such
person and shall, as soon as may be, inform
him of the grounds for such arrest.
(2) The Director, Deputy Director, Assistant
Director or any other officer shall,
immediately after arrest of such person under
sub-section (1), forward a copy of the order
along with the material in his possession,
referred to in that sub-section, to the
Adjudicating Authority in a sealed envelope,
in the manner, as may be prescribed and such
Adjudicating Authority shall keep such order
and material for such period, as may be
prescribed.
(3) Every person arrested under sub-
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section (1) shall, within twenty-four hours, be
taken to a Special Court or Judicial
Magistrate or a Metropolitan Magistrate, as
the case may be, having jurisdiction:
Provided that the period of twenty-four
hours shall exclude the time necessary for the
journey from the place of arrest to the Special
Court or Magistrate’s Court.
62. Punishment for vexatious search.
—Any authority or officer exercising powers
under this Act or any rules made thereunder,
who, without reasons recorded in writing,—
(a) searches or causes to be searched any
building or place; or (b) detains or searches
or arrests any person, shall for every such
offence be liable on conviction for
imprisonment for a term which may extend to
two years or fine which may extend to fifty
thousand rupees or both.
65. Code of Criminal Procedure, 1973
to apply.—The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974) shall
apply, in so far as they are not inconsistent
with the provisions of this Act, to arrest,
search and seizure, attachment, confiscation
investigation, prosecution and all other
proceedings under this Act.
71. Act to have overriding effect.—The
provisions of this Act shall have effect
notwithstanding anything inconsistent
therewith contained in any other law for the
time being in force.”
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Thus, it can be seen that the provisions of both the statutes absolutely
make it clear that if there is a special enactment and if there is any special
provision contained in respect of any particular purpose, then that special
provision will apply. Wherever the special enactment does not contain
specific provisions, then the provisions of the Code of Criminal Procedure
would apply. The Code of Criminal Procedure and P.M.L.A are thus clearly
and categorically harmonious.
37. As far as the arrest is concerned, a specific provision and special
procedure is made in Section 19 of P.M.L.A, whereby, the power of arrest is
vested in Director, Deputy Director or any other officer authorised by the
Central Government and it must be on the basis of the material in his
possession and he must have reason to believe and such belief is to be
recorded in writing that a person may be guilty of an offence punishable
under the Act and he may arrest such a person by informing him on the
grounds of the arrest. Additionally, such officer should also forward the
copy of the order along with material in his possession to the adjudicating
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authority in a sealed envelope and that the person so arrested shall be
produced before the concerned Special Court or learned Magistrate, as the
case may be, having jurisdiction within a period of 24 hours.
38. It is in this context, when the constitutional validity of the
provisions of P.M.L.A, more specifically Section 19, was challenged before
the Hon’ble Supreme Court of India in Vijay Madanlal Choudhary’s case
(cited supra) specifically in the context that Section 19 prescribes arrest on
the belief of involvement in the offence itself, while Sections 41 and 41-A
of Cr.P.C., have greater protection inasmuch as in respect of the offence
punishable up to 7 years, arrest should not be automatic in all cases merely
on the involvement in the offence, but, either should be necessary on the
ground mentioned in Section 41(1)(b) of Cr.P.C., and in all other cases,
notice under Section 41-A Cr.P.C., only has to be issued. The contentions
were considered by the Hon’ble Supreme Court of India in the paragraph
No.322 onwards of the said judgment. After considering the necessity of
Section 41 Cr.P.C., in paragraph No.323, finally, the Hon’ble Supreme
Court held as follows in the paragraph Nos.325 and 326 which are extracted
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for ready reference :
“ 325. The safeguards provided in the
2002 Act and the preconditions to be fulfilled
by the authorised officer before effecting
arrest, as contained in Section 19 of the 2002
Act, are equally stringent and of higher
standard. Those safeguards ensure that the
authorised officers do not act arbitrarily, but
make them accountable for their judgment
about the necessity to arrest any person as
being involved in the commission of offence of
money-laundering even before filing of the
complaint before the Special Court under
Section 44(1)(b) of the 2002 Act in that
regard. If the action of the authorised officer
is found to be vexatious, he can be proceeded
with and inflicted with punishment specified
under Section 62 of the 2002 Act. The
safeguards to be adhered to by the
jurisdictional police officer before effecting
arrest as stipulated in the 1973 Code, are
certainly not comparable. Suffice it to observe
that this power has been given to the high-
ranking officials with further conditions to
ensure that there is objectivity and their own
accountability in resorting to arrest of a
person even before a formal complaint is filed
under Section 44(1)(b) of the 2002 Act.
Investing of power in the high-ranking
officials in this regard has stood the test of
reasonableness in Premium Granites,
wherein the Court restated the position that
requirement of giving reasons for exercise of
power by itself excludes chances of
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arbitrariness. Further, in Sukhwinder Pal
Bipan Kumar, the Court restated the position
that where the discretion to apply the
provisions of a particular statute is left with
the Government or one of the highest officers,
it will be presumed that the discretion vested
in such highest authority will not be abused.
Additionally, the Central Government has
framed Rules under Section 73 in 2005,
regarding the forms and the manner of
forwarding a copy of order of arrest of a
person along with the material to the
Adjudicating Authority and the period of its
retention. In yet another decision in Ahmed
Noormohmed Bhatti, this Court opined that
the provision cannot be held to be
unreasonable or arbitrary and, therefore,
unconstitutional merely because the authority
vested with the power may abuse his
authority. (Also see Manzoor Ali Khan).
326. Considering the above, we have no
hesitation in upholding the validity of Section
19 of the 2002 Act. We reject the grounds
pressed into service to declare Section 19 of
the 2002 Act as unconstitutional. On the other
hand, we hold that such a provision has
reasonable nexus with the purposes and
objects sought to be achieved by the 2002 Act
of prevention of money-laundering and
confiscation of proceeds of crime involved in
money-laundering, including to prosecute
persons involved in the process or activity
connected with the proceeds of crime so as to
ensure that the proceeds of crime are not
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H.C.P.No.1021 of 2023
dealt with in any manner which may result in
frustrating any proceedings relating to
confiscation thereof.”
Therefore, it is clear that the issue is no longer res integra and the
Hon’ble Supreme Court of India had considered that the special provision in
the form of Section 19 adequately safeguards the interests of the accused
and thus, the express application of Sections 41 and 41-A of Cr.P.C., stood
negated in respect of the offence under P.M.L.A.
39. But, at the same time, I find that subsequently, in Satender
Kumar Antil’s case (cited supra), the Hon’ble Supreme Court of India even
though considered the offence under P.M.L.A under category (C), however,
in paragraph No. 27, held that the requirements under Sections 41 and 41-A
of Cr.P.C., are facets of Article 21 of the Constitution of India. If that be
so, a careful reading of the judgments of the Hon’ble Supreme Court of
India in Vijay Madanlal Choudhary’s case (cited supra) and Satender
Kumar Antil's case (cited supra) would lead us to the conclusion that per
se, it is only Section 19 of P.M.L.A that is the substantive provision enabling
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the arrest and prescribes the special procedure and therefore Sections 41
and 41-A Cr.P.C., are not expressly applicable. However, the principles
underlying Sections 41 and 41-A of Cr.P.C., are to be extrapolated and read
into Section 19 of P.M.L.A also. That is in each and every case it is not
mandatory to arrest the accused and the officers, exercising powers under
Section 19, have to satisfy the ingredients as mentioned in Section 41(1)(b)
of Cr.P.C., and in all the other cases, the arrest procedure need not be
resorted to as the investigation can be carried on by issuing summons
directing them to provide details.
40. Keeping this legal position in mind, if I examine the present case,
on a perusal of the counter affidavit filed by the Investigating Officer of the
case, it would be clear that the accused behaved in a manner so as to
intimidate the Investigating Officer and secondly, did not also furnish the
particulars which were necessary to trace out the money trail relating to the
offence and thirdly was hampering the investigation. Therefore, on more
than one ground mentioned in Section 41(1)(b) of Cr.P.C., the arrest was
necessary and the same is clearly mentioned in the grounds of arrest and
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thus, even in the absence of specific application, substantially the
requirements under Section 41 and 41-A of Cr.P.C., stood complied in the
instant case. Therefore, I find that the petitioner has not made out a case in
this regard.
(iii) Non-application of mind at the time of remand :
41. I have extracted the remand order supra. On a perusal thereof, It
cannot be said that there is non-application of mind much less total non-
application of mind. The contention of the learned Senior Counsel for the
detenu is that when the objections are raised in the petition to reject the
remand, the said petition ought to have been considered while making the
order of remand and it was incumbent on the part of the learned Presiding
Officer to apply his or her mind in respect of those objections and if those
objections are found to be genuine or valid, then the remand should be
refused and if the objections are liable to be rejected, then the remand
should be authorised.
42. In the instant case, after making the order aforesaid in the remand,
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the objections were rejected as follows :
“14.06.2023
Since the accused has already been
remanded to judicial custody, this Petition for
rejection of remand doesn’t arise. Hence this
Petition is dismissed as infructuous.”
43. To that extent, I agree on the point of law that the proper exercise
of powers by the learned remanding Judge would be to first consider the
objections and decide upon the objections which should be made
immediately and then make the order of remand or otherwise
simultaneously. In this case, the procedure otherwise is incorrect. But, the
factual scenario on hand is that the learned Presiding Officer visited the
Hospital after examining the conditions and after examining the grounds of
arrest, reasons mentioned in her remand order is said to have authorised the
judicial custody after hearing the arguments of the learned Senior Counsel
on the objections as to the remand and she also answers the questions as to
informing of grounds of arrest. Thereafter she decided the petition
aforesaid. Even though a petition for objections has been taken up
subsequently, all the substantive allegations of non-information of the
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grounds, non-existence of prima facie case and other concerns were
independently considered by her which reflects in the order of remand and
therefore, the violation complained is only of procedure and becomes
technical in nature, as there is substantive application of mind in the order
of remand. Therefore, in this context, even though I agree with the
submissions of the learned Senior Counsel that the procedure adopted by the
learned Pricipal Sessions Judge could have been better, substantive
compliance relating to the application of mind as to the compliance of the
Article 22 of the Constitution of India, Section 19 of P.M.L.A for arrest and
consideration of other apprehensions expressed by the detenu himself are
made and therefore, there the exercise of power cannot be termed as
“absolute mechanical manner” or 'total non application of mind'.
44. Additionally, I am unable to accept the submissions relating to the
manipulation of the grounds of arrest. The very fact that an endorsement is
made in hand writing in the last part of the document about the intimation
through e-mails would itself make it clear that the grounds of arrest were
ready at the time of arrest and the Investigating Officer had to write on hand
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subsequently in the morning after sending the e-mails. The only irregularity
is that such a writing should be an endorsement below the signature by duly
entering the time of endorsement. Such inadvertent error cannot make the
entire grounds of arrest as unbelievable and when the learned Presiding
Officer makes a categorical statement that she has perused the grounds of
arrest, the same cannot be said to be imaginary. Further, the initials in the
grounds of arrest are also made and therefore, in these peculiar facts and
circumstances, I are unable to accept the arguments that the date stamp,
stating that the grounds are before the Court only on 16.06.2023, should be
taken into consideration for the purpose of disbelieving the respondents
officials that the grounds of arrest were informed to the detenu. Therefore, I
hold that the petitioner has not made out any ground on this score also.
45. Therefore, on the conspectus of the above analysis, it can be seen
that the petitioner is unable to make out any ground. Every ground raised is
untenable or to say the least is arguable both in terms of law and on facts
and therefore, this is not a case of patent illegality or absolute non-
application of mind or case of lack of jurisdiction so as to grant any relief to
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the petitioner.
I. Question No.iii :
46. Coming to the prayer of exclusion of time, it is the first contention
of the learned Senior Counsel for the petitioner that the respondents are not
Police officer to seek custody. In this regard, I have already extracted
Section 65 of P.M.L.A and if Section 65 is read along with Section 4(2) and
5 of Cr.P.C., it can be seen that in respect of the investigation of the
offences under P.M.L.A, since no other contrary or separate procedure is
contained in P.M.L.A, the provisions relating to investigation would be
applicable to the offences relating to P.M.L.A. Already, this issue has been
considered by the Hon’ble Supreme Court of India in Directorate of
Enforcement’s case (cited supra) in the context of FERA and it is relevant
to extract the paragraph Nos.132 to 136 which read as follows :
“ 132. For the aforementioned reasons,
we hold that the operation of Section 4(2) of
the Code is straightaway attracted to the area
of investigation, inquiry and trial of the
offences under the special laws including the
FERA and Customs Act and consequently
Section 167 of the Code can be made
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H.C.P.No.1021 of 2023
applicable during the investigation or inquiry
of an offence under the special Acts also
inasmuch as there is no specific provision
contrary to that excluding the operation of
Section 167.
133. Though much argument was
advanced on the expression “otherwise dealt
with”, we think it is not necessary to go deep
into the matter except saying that the said
expression is very wide and all
comprehensive. Vide Bhim Singh v. State of
U.P. [AIR 1955 SC 435 : (1955) 1 SCR 1444
: 1955 Cri LJ 1010] and Delhi Admn. v. Ram
Singh [(1962) 2 SCR 694 : AIR 1962 SC 63 :
(1962) 1 Cri LJ 106] .
134. There are a series of decisions of
various High Courts, of course with some
exception, taking the view that a Magistrate
before whom a person arrested by the
competent authority under the FERA or
Customs Act is produced, can authorise
detention in exercise of his powers under
Section 167. Otherwise the mandatory
direction under the provision of Section 35(2)
of FERA or Section 104(2) of the Customs
Act, to take every person arrested before the
Magistrate without unnecessary delay when
the arrestee was not released on bail under
sub-section (3) of those special Acts, will
become purposeless and meaningless and to
say that the courts even in the event of refusal
of bail have no choice but to set the person
arrested at liberty by folding their hands as a
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H.C.P.No.1021 of 2023
helpless spectator in the face of what is
termed as “legislative casus omissus” or
legal flaw or lacuna, it will become utterly
illogical and absurd.
135. We are in total agreement with the
above view of the various High Courts for the
discussion made already and conclusions
arrived at thereto.
136. In the result, we hold that sub-
sections (1) and (2) of Section 167 are
squarely applicable with regard to the
production and detention of a person arrested
under the provisions of Section 35 of FERA
and Section 104 of Customs Act and that the
Magistrate has jurisdiction under Section
167(2) to authorise detention of a person
arrested by any authorised officer of the
Enforcement under FERA and taken to the
Magistrate in compliance of Section 35(2) of
FERA.”
(emphasis supplied)
47. In this case, the learned Senior Counsel are not arguing that
Section 167 Cr.P.C., will not be applicable and the accused cannot be
produced before the appropriate Court for authorising the proper custody
being the judicial custody or Police custody. The only contention which is
made is that when once the language used in section speaks of Police
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H.C.P.No.1021 of 2023
custody and since it is the contention of the Enforcement Directorate that
they are not Police officers, then they are not even entitled to seek Police
custody. I am not able to accept these submissions because firstly, under
Section 167(2) of Cr.P.C., the phrase used is “authorise detention of the
accused in such custody as the Magistrate thinks fit”. Therefore, the word
“Police” is not even specifically used at the first instance. In any event,
when Section 65 of P.M.L.A expressly makes it clear that the provisions in
the Code of Criminal Procedure relating to investigation will apply to
P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis
mutandis and therefore, the word “Police” has to be read as Investigating
Agency or the Enforcement Directorate. Therefore, the first contention that
the Enforcement Directorate cannot seek for Police custody is without any
merits.
48. Further, the learned Solicitor General of India also relied upon
P.Chidambaram Vs. Directorate of Enforcement’s case (cited supra) and
several other orders, whereby, the Hon’ble Supreme Court of India and the
various other fora have, as a matter of fact, granted custody to the
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H.C.P.No.1021 of 2023
Enforcement Directorate. Merely because the express provision to act as
Station House Officer is absent, the same will not in any manner disentitle
the Enforcement Directorate from asking for the custody. Therefore, there
can be no doubt whatsoever that the respondents officers are entitled to ask
for custody.
49. The further question which arises is that if in the first 15 days, it
was not possible at all for the learned Magistrate to entrust the custody of
the accused to the investigating agency, whether such period can be
excluded and whether custody can be handed over in the subsequent period
of judicial custody after extension of remand. The Hon’ble Supreme Court
of India in Central Bureau of Investigation, Special Investigation Cell-I,
New Delhi Vs. Anupam J. Kulkarni’s case (cited supra), after considering
the question, answered that after the expiry of the first period of 15 days, the
further remand during the period of investigation can only be in judicial
custody and there cannot be any Police custody after the expiry of the first
15 days even in a case where some more offences, either serious or
otherwise, committed by him in the same transaction comes to light at a
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H.C.P.No.1021 of 2023
later stage. It is useful to extract the paragraph No.13, the relevant portion
of which reads as follows :
“ 13. Whenever any person is arrested
under Section 57 CrPC he should be
produced before the nearest Magistrate within
24 hours as mentioned therein. Such
Magistrate may or may not have jurisdiction
to try the case. If Judicial Magistrate is not
available, the police officer may transmit the
arrested accused to the nearest Executive
Magistrate on whom the judicial powers have
been conferred. The Judicial Magistrate can
in the first instance authorise the detention of
the accused in such custody i.e. either police
or judicial from time to time but the total
period of detention cannot exceed fifteen days
in the whole. Within this period of fifteen days
there can be more than one order changing
the nature of such custody either from police
to judicial or vice-versa. If the arrested
accused is produced before the Executive
Magistrate he is empowered to authorise the
detention in such custody either police or
judicial only for a week, in the same manner
namely by one or more orders but after one
week he should transmit him to the nearest
Judicial Magistrate along with the records.
When the arrested accused is so transmitted
the Judicial Magistrate, for the remaining
period, that is to say excluding one week or
the number of days of detention ordered by
the Executive Magistrate, may authorise
further detention within that period of first
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H.C.P.No.1021 of 2023
fifteen days to such custody either police or
judicial. After the expiry of the first period of
fifteen days the further remand during the
period of investigation can only be in judicial
custody. There cannot be any detention in the
police custody after the expiry of first fifteen
days even in a case where some more offences
either serious or otherwise committed by him
in the same transaction come to light at a
later stage. But this bar does not apply if the
same arrested accused is involved in a
different case arising out of a different
transaction.”
(emphasis supplied)
50. This position was further reiterated in the judgment in Budh
Singh Vs. State of Punjab’s case (cited supra) and the paragraph No.5 of
the said judgment is extracted hereunder :
“ 5. In the face of facts, as noticed above,
the order of the learned Judicial Magistrate,
dated 4-1-2000, in our opinion, did not
require any interference. The mandate of
Section 167 of the Criminal Procedure Code,
1973 postulates that there cannot be any
detention in police custody, after the expiry of
the first 15 days, so far as an accused is
concerned. That period of 15 days had in this
case admittedly expired on 4-1-2000. The
impugned order of the High Court violates
the statutory provisions contained in Section
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H.C.P.No.1021 of 2023
167 CrPC since it authorises police remand
for a period of seven days after the expiry of
the first fifteen days' period. In CBI v.
Anupam J. Kulkarni [(1992) 3 SCC 141 :
1992 SCC (Cri) 554] this Court considered
the ambit and scope of Section 167 CrPC and
held that there cannot be any detention in
police custody after the expiry of the first 15
days even in a case where some more
offences, either serious or otherwise
committed by an accused in the same
transaction come to light at a later stage. The
Bench, however, clarified that the bar did not
apply if the same arrested accused was
involved in some other or different case
arising out of a different transaction, in
which event the period of remand needs to be
considered in respect to each of such cases.
The impugned order of the High Court, under
the circumstances, cannot be sustained. The
direction to grant police remand for a period
of seven days by the High Court is,
accordingly, set aside. The appeal, therefore,
succeeds and is allowed to the extent
indicated above.”
(emphasis supplied)
51. Further, the judgment in S.Kasi’s case (cited supra) is also
pressed into service, whereunder, it was held that the rule relating to the
default bail on expiry of 60 days or 90 days, as the case may be, prescribed
under Section 167 of Cr.P.C., was read to be inviolable even in the
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H.C.P.No.1021 of 2023
backdrop of Covid pandemic. Be that as it may, the Hon’ble Supreme Court
of India had recently considered the said issue in CBI Vs. Vikas Mishra’s
case (cited supra), wherein, the said legal position was taken note of in the
paragraph No.12 which is extracted hereunder :
“ 12. Relying upon the decisions of this
Court in CBI v. Anupam J. Kulkarni [CBI v.
Anupam J. Kulkarni, (1992) 3 SCC 141 :
1992 SCC (Cri) 554] and the subsequent
decision in Budh Singh v. State of Punjab
[Budh Singh v. State of Punjab, (2000) 9
SCC 266] , it is vehemently submitted by Shri
Neeraj Kishan Kaul, learned Senior Counsel
appearing on behalf of the accused that as
such no police custody can be
granted/allowed beyond the first 15 days from
the date of arrest. It is submitted that
therefore now the police custody which shall
be beyond the period of 15 days from the date
of arrest is not permissible.”
52. Thereafter, in the paragraph No.21 ultimately, it is held as follows
:
“ 21....Thus, the respondent-accused has
successfully avoided the full operation of the
order of police custody granted by the learned
Special Judge. No accused can be permitted
to play with the investigation and/or the
court's process. No accused can be permitted
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H.C.P.No.1021 of 2023
to frustrate the judicial process by his
conduct. It cannot be disputed that the right of
custodial interrogation/investigation is also a
very important right in favour of the
investigating agency to unearth the truth,
which the accused has purposely and
successfully tried to frustrate. Therefore, by
not permitting CBI to have the police custody
interrogation for the remainder period of
seven days, it will be giving a premium to an
accused who has been successful in
frustrating the judicial process.”
53. It is argued before this Court that even though this Court that this
Court should look into the strength of the bench and since Budh Singh Vs.
State of Punjab’s case (cited supra) is a three Member Bench and when two
views are available, this Court should follow Budh Singh Vs. State of
Punjab’s case (cited supra), being the larger bench. That may be true in a
situation where two views are taken in two different Judgments. But, in this
case, when specifically the said judgment has been referred by the Hon’ble
Supreme Court of India and view has been taken that under exceptional
circumstance, the rule of first 15 days is dispensable then, as on date, this
Court has to take the legal position as such. Therefore, in view of the
aforesaid decision in CBI Vs. Vikas Mishra’s case (cited supra), it can no
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H.C.P.No.1021 of 2023
more be said that rule relating to 15 days is inviolable.
54. In this case, after the arrest and before the production before the
learned Principal Sessions Judge and after the remand, not even a minute,
for which, the detenu / accused was available to the respondents for
custodial interrogation. In the offences like P.M.L.A, especially in the
current scenario, when money trail is difficult to be unearthed on account of
huge advancement of technology wire transfers, off-shore investments and
transfers, it is extremely essential to unearth the truth and the custodial
interrogation assumes significance.
55. The accused, in this case, was unwell and it was due to his
Coronary Artery Disease. The reason is attributable not to the Enforcement
Directorate. Similarly, not permitting him in the custody for interrogation,
is only taking into consideration of his own health and his health condition
so that he will not be put to undue stress when he is ailing from a serious
disease and post operative care. In such circumstances, when the first 15
days goes in the Hospital for his own benefit, then the benefit of custodial
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H.C.P.No.1021 of 2023
interrogation cannot be denied in its entirety to the respondents
Enforcement Directorate.
56. A careful observation of the provisions of the Code of Criminal
Procedure and various rulings of the Hon’ble Apex Court, one can
understand that our criminal justice system operates on the principles of
Truth (sathya), Justice (neethi), Compassion (karuna) and Peace (shanthi).
Upto the stage of investigation and trial, it is the unearthing of the truth and
truth alone is the primary objective. At the conclusion of the trial and
rendering judgment, the primary objective is to render justice. If the person
is found guilty and is sentenced to prison, Compassion is showered on him.
As a matter of fact, the rights guaranteed by our Constitution to the
prisoners can be better explained by the concepts of 'Supreme Compassion'
as advocated by Vallalar (Thaniperumkarunai) and highest order of
forgiving by doing good to the offender as enunciated in Thirukkural
(Nannayam Seithu vidal). And compassion leads to Shanthi in the society.
Now, keeping that in the mind, provision relating to investigation has to be
approached and interpreted with the primary aim of unearthing the truth.
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H.C.P.No.1021 of 2023
Therefore, in that view of the matter, I am of the view that the time spent by
the detenu / accused in the Hospital, only such time till he is not in a
position to be fit to be interrogated has to be excluded from the initial 15
days time for grant of custody to the respondents and accordingly, I answer
the question.
57. Having answered the above question, I place on record one
disturbing fact. By the interim order dated 15.06.2003, this Court, based on
the medical reports of the detenu, had agreed that the detenu needs
emergency medical treatment and ordered shifting to Cauvery Hospital for
treatment. As a matter of fact, the respondents Enforcement Directorate had
every right to feel aggrieved by our interim order and also to approach the
Hon'ble Supreme Court for redressal and has been rightly done so in this
case. But, at the same time, the custody was also pressed on the next day.
Had the learned Principal Sessions Judge, Chennai had granted the prayer,
then virtually, it would amount to overruling the order that there is
necessity for emergent treatment. Therefore I leave the respondents with
the question as to whether it was fair and proper? As a matter of fact, an
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H.C.P.No.1021 of 2023
order has also been passed, against which, as submitted by the learned
Solicitor General and Special Leave Petition is pending and therefore,
judicial discipline commands and I refrain myself.
J. Question No.iv :
58. By our interim order, we had directed shifting of the detenu /
accused to the Cauvery Hospital, Chennai to undergo treatment for his
ailment. It is also submitted before us that already, the surgery is performed
and he is out of the Intensive Care Unit and at present, continuing his
treatment in the Hospital. Considering the fact that he has undergone
surgery and he can continue to undergo the treatment at the Cauvery
Hosiptal for a period of another 10 days from today or until discharge
whichever is earlier. If he needs treatment even after the 10th day, the same
shall be continued at the Prison Hospital and his physician / surgeon can
also visit him there and continue the treatment/follow up.
K. The Result :
59. In the result,
(i) The Habeas Corpus Petition in H.C.P.No.1021 of 2023 shall stand
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H.C.P.No.1021 of 2023
dismissed;
(ii) The period from 14.06.2023 till such time the detenu / accused is
fit for custody of the respondent shall be deducted from the initial period of
15 days under Section 167(2) of the Code of Criminal Procedure;
(iii) The detenu / accused shall continue the treatment at Cauvery
Hospital until discharge or for a period of 10 days from today whichever is
earlier and thereafter, if further treatment is necessary, it can be only at the
Prison/ Prison Hospital as the case may be;
(iv) As and when he is medically fit, the respondents will be able to
move the appropriate Court for custody and the same shall be considered on
its own merits in accordance with law except not to be denied on the ground
of expiry of 15 days from the date of remand;
(v) However, there shall be no order as to costs.
04.07.2023
Index : yes/no
Speaking order/Non-speaking order
Neutral Citation : yes/no
sts/nvsri/grs
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H.C.P.No.1021 of 2023
To
1. The Deputy Director,
Directorate of Enforcement,
Chennai.
2. The Assistant Director,
Directorate of Enforcement,
Chennai.
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H.C.P.No.1021 of 2023
J.NISHA BANU, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
grs/sts/nvsri
Order in
H.C.P.No.1021 of 2023
Dated:
04.07.2023
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