TMI Blog2021 (5) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... police officer to arrest any person without a warrant, Section 42 empowering a Police officer to arrest a person who commits an offence in his presence, Section 43 enabling a private person to arrest any person who commits an offence in his presence and or a proclaimed offender, Section 44 deals with arrest by a Magistrate and Section 46 lays down the manner in which the arrest has to be made. In the present case, the power to arrest is circumscribed by the PMLA itself. This power has to be exercised in the manner as provided under PMLA or not at all. Apart from the exercise of power to arrest in a particular manner, PMLA also provides or mandates that the arresting officer inform the arrestee of the grounds of his arrest at the earliest without any unnecessary delay so as to safeguard the individual freedom of that person who can on that basis apply for and seek for bail if so provided - The question is as to whether the arresting officer is required to only inform the grounds of arrest or provide the same in writing to the person arrested for an offence under the PMLA. The PMLA has various provisions relating to the offence of money laundering as regards which stringent punish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the material in his possession . This reason to believe, in my considered opinion, would be the objective satisfaction of the Investigating Officer on the basis of the material available with him since the Investigating officer has conducted the investigation and has secured material. The only requirement under the Act is the reason to believe by the Investigating officer or the arresting officer that the person is guilty of the offence . It is therefore not required for the Investigating officer to prove the purpose of arrest or even to make any submission as regards the requirement of arrest to protect the proceeds of the crime. Though of course, the same is not part of Section 19(1) as contended by Shri Aravind Kamath, learned Senior counsel, the same would be examined by the Court while granting bail to consider whether the person arrested is required to be retained in judicial custody for the reason that the said person may tamper with evidence and or with the proceeds of crime. Said factor would have to be considered at the time of granting of bail and not at the time of the arrest. Arrest and remand to police custody and thereafter to judicial custody, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quired to be reduced to writing on the grounds of arrest formulated by the Investigating Officer? - HELD THAT:- The objective satisfaction of the guilt of the accused can only be ascertained from the material on record, it cannot be expected of an Investigating Officer to in detail record the same in writing and form a part of grounds of arrest formulated by the Investigating Officer - However, the grounds of arrest are required to be sufficiently detailed out as to why a person is being arrested, in brief state as to what is the material available with the Investigating officer which would link the person to be arrested to an offence under the Act and why the person is believed to be guilty of the commission of such an offence. These factors, if contained in the grounds of arrest, would be sufficient, it would not be required for a detailed adjudicatory order to be made by the Investigating Officer as to the guilt of the accused. Thus, the objective satisfaction of the guilt of the accused is required to be reduced to writing in the grounds of arrest formulated by the Investigating Officer prior to the arrest and to be furnished in writing to the arrestee at the time of arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused in the case registered by the NCB till the date of filing of this Writ Petition. 2.3. On 16/10/2020, the Respondent summoned the Petitioner yet again. The Petitioner appeared before the Respondent and recorded his statement. Thereafter, the Respondent summoned the Petitioner again on 29/10/2020 and recorded his statement. The Respondent has not provided copies of such statements to the Petitioner. At about 02:15 PM, the Respondent arrested the Petitioner under Section 19 PMLA. At the time of arrest, the Respondent did not serve on the Petitioner a copy of the Arrest Order, nor did he furnish the Written Grounds of Arrest to the Petitioner. The Respondent also failed to inform the relatives/ friends of the Petitioner in compliance with the guidelines laid down by the Hon ble Supreme Court in the case of D.K. Basu v- State of West Bengal [(1997) 1 SCC 416]. 2.4. Thereafter, the Respondent produced the Petitioner before the Court of 34th Additional City Civil Sessions Judge and Special Judge for CBI PMLA Cases, Bengaluru ( Special Court ) on 29/10/2020. The respondent filed an application for remand of the Petitioner to the custody of the Respondent for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re proceeds of the crime. The reasons stated by the Respondent in various documents on the grounds for arrest is captured in a table produced below: Sl.No. Nature of record Reasons stated for arrest u/s 19 PMLA 1. Remand Application dated 29/10/2020 To safeguard the entire proceeds of crime involved in money laundering which is in his possession and his associates, the applicant department invoked Sec. 19(1) PMLA and arrested the accused. (para 8) 2. Remand Application dated 02/11/2020 To safeguard the entire proceeds of crime involved in money laundering which is in his possession and his associates, the applicant department invoked Sec.19(1) PMLA and arrested the accused. (para 15) 3. Remand Application dated 07/11/2020 To safeguard the entire proceeds of crime involved in money laundering which is in his possession and his associates, the applicant department invoked Sec.19(1) PMLA and arrested the accused (para 17) 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the right remedy. 2.7.9. As such, the arrest of the Petitioner suffered from two severe infirmities, namely, one a failure to follow the constitutional mandate and two, arresting him for prevention of destruction/tampering evidence, when the entire evidenced was already in the custody of the Respondent and for safeguarding the proceeds of crime, which too were in the control of the Respondent. 2.8. By an order dated 11/11/2020, the Special Court remanded the Petitioner to judicial custody for 14 days and directed that the case be listed on 18/11/2020 to hear the bail application. 2.9. On an application being made by the respondent, the Special Court issued certified copies of the grounds of arrest as well as the arrest order on 12/11/2020. 2.10. Prior to 12/11/2020, the Petitioner had not at all been served with grounds of arrest and arrest order. Although the Respondent obtained signatures of the Petitioner on various documents, including the grounds of arrest and arrest order, he had not provided copies of them to the Petitioner at or during the time of the arrest. On this behalf, while in judicial custody, the Petitioner has sworn to an affidavit that he had not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kash Dixit v- Union of India (supra), the Hon ble Delhi High Court, while holding that it is mandatory to issue a copy of the grounds of arrest in writing to the accused, observed as follows Rules 2 (1) (g) and (h) of the PMLA Arrest Rules define material and order respectively. Rule 2(1) (h) states that order means the order of arrest and includes the grounds of such arrest under sub Section (i) of Section 19 of the Act. The arrest order is specified in Form III. In terms of Rule 6 it is required to be signed by the arresting officer while exercising the power under Section 19(1) PMLA. Form III itself indicates that the arrest order is to be communicated to the person arrested. The foot of Form III reads thus: To .......................................................... .............................. (Name and Complete address of the person arrested) When Form III uses the word Order that has to include, as per Rule 2 (1) (h) of the PML Arrest Rules, the grounds of arrest. The underlying object of the said Rules is not merely to inform the person arrested of the grounds of arrest, but to also furnish him a copy thereof. Even Rule3(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Psychotropic substance) which is beyond the permissible limits. Shri. Rijesh Ravindran and Smt. Anika D were arrested by the NCB for involvement in drug business. 3.4. The Narcotics Control Bureau, Bengaluru registered a case vide F.No. 48/1/14/2020/BZU dated 22.08.2020 u/s 22, 27A, 28 and 29 of NDPS Act, 1985 against Mr. Mohammed Anoop and others. 3.5. Offences under Section 22 27A of Narcotics Drugs and Psychotropic Substances Act, 1985 are scheduled offences under Section 2(1)(x) (y) of the PMLA. Therefore, the Directorate of Enforcement has recorded Enforcement Case Information Report in ECIR No. BGZO/32/ 2020 on 09.09.2020 and initiated investigation under the PMLA. 3.6. Post recording of ECIR on 09.09.2020, the Complainant took up the further investigation of the above case and initially sought for the issuance of body warrant as against the accused/Mohammed Anoop and body warrant was issued. Accordingly, the said Mohammed Anoop was produced before the Court on 17.10.2020. On the said date, the Complainant/ DTE sought custody of the said accused/Mohammed Anoop; the Court, being satisfied, handed over the custody of accused/Mohammed Anoop to the Complainant for cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 50(3) of PMLA, which disclosed his active connivance in the offence, and therefore the Petitioner s further custody was sought, and the same was allowed by the Court on 02.11.2020, 07.11.2020 and the custody of the Petitioner was granted to the DTE till 11.11.2020. 3.11. During the course of the investigation of the case, Shri. Mohammed Anoop revealed in his statement dated 20.10.2020 deposed under Section 50(3) of PMLA that he was made a Benamidar of a restaurant of Petitioner. He also accepted in his statement dated 20.10.2020 that Petitioner is his boss, and he did whatever Petitioner told him to do, for which Petitioner used to pay. It is also revealed that the accused/Mohammed Anoop has no independent business or standing in the society and that he is being used as a benamidar by the Petitioner herein to invest money in the drug trade and drug trafficking 3.12. It is stated that the investigation has revealed that: 3.12.1. Mohammed Anoop is closely linked with the Petitioner, and all his financial dealings were done on the instructions of the Petitioner, who had paid huge amounts of unaccounted money to Mohammed Anoop. 3.12.2. There are 100s of telephone calls/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Punjab National bank, Trivandrum, which is purportedly against the mortgage of his mother-in-law s immovable property, is found to be untrue. On analysis of bank accounts, it is seen that the cash was deposited in the accounts of Petitioner just before the fund transfers to Mohammed Anoop. Further: 3.12.9. There is no interest payment by Shri. Mohammed Anoop on loan taken from the Petitioner. 3.12.10. The loan is stated to be taken by Petitioner in the name of M/s. Old Coffee House Restaurant as a Business loan, and he is paying huge interest on service of this loan. Petitioner however, never had not shown this loan in his Income Tax Returns starting from FY 2012-13 to till date. 3.12.11. The repayment of interest on the loan by Petitioner was made through cash deposits in the said loan account, and the source of said cash deposits is not known. 3.12.12. The contention of Petitioner is that the money given to Mohammed Anoop is out of the loan taken from Punjab national bank; however, the bank account statement did not substantiate the same. 3.13. During the statement recorded Under Section 50(3) of PMLA, Shri Mohammed Anoop stated that there are two companies viz. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. The details of these companies have been obtained from MCA website. Further investigation is underway. 3.18. During the search operations, u/s 17(1) of the PMLA, conducted on the residential address of the accused herein, one IndusInd Bank debit card bearing the name of Shri Mohammed Anoop, who is a drug dealer, was found at the residential premises of the petitioner. On the opposite side of the said debit card, the signature of the Petitioner has been found. Details of the said debit card were sought from the concerned bank, and it was revealed that the said debit card pertains to the bank account of Hayaat restaurant. It is the same nonfunctional restaurant that was financed by the accused herein and was operated by Shri Mohammed Anoop, a drug dealer and a Benamidar of the Petitioner. Subsequently, details of the bank account connected with the said debit card were sought from IndusInd Bank, and the bank informed that there is a cash deposit of ₹ 20 lakhs. The cash which was deposited by Mohammad Anoop in the bank account of Hayaat hotel was sourced from the only business that he was carrying, and that is the illegal business of drug dealing. The finding of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K Basu vs State of West Bengal 1997 (1) SCC 416. The copy of served documents has already been submitted to the sessions court. The respondent has followed all conditions laid down in section 19 of the PMLA Act for the arrest of the accused. This fact is also self-evident from the fact that the Petitioners signature is affixed on each page of the arrest order as well as the grounds of arrest, meaning thereby that he was informed of his grounds of arrest. 3.22. That, furthermore, two associates have also disclosed in their statement that the Petitioner herein is involved in financing the drug business of the co-accused/Mohammed Anoop and others involved in the crime. Statements of the accused/applicant recorded by the ED, u/s 50(3) of PMLA, disclosed his active connivance in the offence, and therefore the applicant s further custody was sought. Petitioner thus bringing the profits from the illegal business of drug dealings into the mainstream financial system to escape from the clutches of law enforcement agencies, including the Enforcement Directorate. The facts revealed that Petitioner is guilty of the offence of money laundering as per the provision of section 3 of PMLA, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunicate the grounds of arrest in writing. 4.4. The respondent, Investigating Officer, was therefore obliged to communicate the grounds of arrest by serving a copy of the grounds of arrest on the Petitioner 4.5. In this regard he refers to the Notes on Clauses appended to the PML Bill 1999 which reads as under: Clause 18 proposes to empower the Director, the Deputy Director, the Assistant Director or any other authorized officer to arrest a person if he has reason to believe that the person is guilty of an offence under the proposed legislation. Necessary safeguards such as furnishing the grounds of arrest and the production before the Judicial Magistrate or a Metropolitan Magistrate within twenty-four hours are also sought to be provided. (emphasis supplied) 4.6. The legislative intent was to include furnishing of grounds of arrest as a necessary safeguard from the arbitrary exercise of the power of arrest. Furnishing of the Grounds of arrest, in no sense of the term, can be interpreted to mean the mere taking of the signature of the arrested person on the grounds of arrest. 4.7. Furnishing a copy of the grounds of arrest would not only operate as a safeguard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the detenu. As explained the Constitution Bench of the Supreme Court in C.B. Gautam (supra), in the context of the IT Act, the obligation to record reasons and convey the same to the party concerned operates as a deterrent against possible arbitrary action by the quasi-judicial or the executive authority invested with judicial powers. Also it is not understood why the DOE did not want to provide the detenu the copy of grounds of arrest as recorded by it. It would not prejudice the DOE in any way. 47. The Notes on Clauses accompanying the PML Bill, 1999 clarified what was intended as follows: Clause 18 proposes to empower the Director, the Deputy Director, the Assistant Director or any other authorized officer to arrest a person if he has reason to believe that the person is guilty of an offence under the proposed legislation. Necessary safeguards such as furnishing the grounds of arrest and production before the Judicial Magistrate or a Metropolitan Magistrate within twenty-four hours are also sought to be provided. (emphasis supplied) 48. Rules 2 (1) (g) and (h) of the PMLA Arrest Rules define material and order respectively. Rule 2 (1) (h) states that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arrest, even according to the SFIO, were only explained to the Petitioner. Nowhere is it noted that he was attempted to be served with the grounds of arrest and he refused to receive the grounds. It is only said that he refused to sign the arrest memo in acknowledgment of his having been explained the grounds of arrest. Although Section 212 (8) states that he should be informed of the grounds of arrest, Rule 4 of the SFIO Arrest rules read with the Arrest form appended thereto mandates serving upon the Petitioner the copy of the Arrest Order containing the grounds of arrest in Column 15. Even till the filing of the present petition or even thereafter the Arrest order was not served on the Petitioner. 4.11.3. Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 8. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 Cr.P.C. to be produced before the Magistrate without WP No. 13261 of 2020 unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey: 8.1. During the course of investigation of a case, an accused can be kept in detention be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny. 4.11.4. State of Punjab v. Davinder Pal Singh Bhullar, (2011) 14 SCC 770 107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, the legal maxim sub lato fundament to cadit opus meaning thereby that foundation being removed, structure/work falls, comes into play and applies on all scores in the present case. 4.12. By referring to Section 19 of the PMLA, he submits that the purpose of arresting a person under the PMLA, the Investigating officer has to come to a conclusion prior to the arrest that the person to be arrested has committed the offence and or is guilty of having committed the offence. The degree of satisfaction that is required to be achieved prior to arrest is that of the accused is guilty of having committed the offence. 4.13. This degree of satisfaction is to be reflected in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such arrest for any act which is an offence under Chapter IV unless such act has been prohibited under clause (c) of section 30. Suspicion standard: 4.17. Reasonable suspicion that the accused has committed the offence is the standard under Section 41 of the Cr.P.C. which is reproduced hereunder: 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 has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house- breaking; or (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 off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... station has and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence relating to - A. Prohibited goods; or B. Evasion or attempted evasion of duty exceeding fifty lakhs rupees, shall be congnizable (5) Save as otherwise provided in sub-section (4), all other offences under the Act shall be non-cognizable. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence punishable under section 135 relating to:- (a) Evasion or attempted evasion of duty exceeding fifty lakh rupees; or (b) Prohibited goods notified under section 11 which are also notified under sub-clause (c) of (I) of sub-section (1) of section 135, or (c) Import or export of any goods which have not been declared in accordance with the provisions of this Act and the market price of which exceeds on e crore rupees; or (d) Fraudulently availing of or attempt to avail of drawback or any exemption from duty provided under this Act, if the amount of drawback or exemption from duty exceeds fifty lakh rupees. (7) Save ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest order together with personal search memo in the Form appended to these rules and shall serve it on the arrestee and obtain written acknowledgement of service. 4.21. Section 19 of the PMLA also envisages guilt standard the same is reproduced hereunder once again for easy reference: Section 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 19, the legislature has specifically intended to limit the width of the power to arrest for an offence under PMLA and since the arrest can be made only after coming to a conclusion by the Investigating officer that the detenue/arrestee is guilty of the offence, a Court of law can grant bail only after the accused were to prove or demonstrate that he is not guilty of the said offence. 4.28. Section 5 of the PMLA empowers the designated authorities to provisionally attach the suspected proceeds of crime, which could include attachment of Bank accounts, properties, both movable and immovable, thereby preserving and protecting the proceeds of crime and consequently reducing the need to arrest a person against whom offence under the PMLA has been alleged. This, in essence, would mean that there is no power vested with the Investigating officer to arrest a person merely for the reason of protecting the proceeds of crime, which can be done by way of an attachment. 4.29. In the present case, the Investigating officer having sought for remand of the petitioner only on the ground that the proceeds of the crime have to be protected, the same does not satisfy the guilt standard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged against the petitioner. The transaction between the petitioner and Mohammed Anoop is through normal banking channels; the petitioner is alleged to have transferred ₹ 46,75,000/- to the account of Mohammed Anoop. The transfer of funds through normal banking channels does not amount to money laundering and therefore, there could never have been a conclusion of guilt drawn against the petitioner. On the above basis, he submits that the guilt standard not having been established; the petitioner could not have been arrested. 5. Sri. Surya Prakash V.Raju, learned Senior counsel and Additional Solicitor General of India, submitted as under: GROUNDS OF ARREST: 5.1. The petitioner has not only been informed of the arrest but also has been provided with grounds of arrest. The said grounds were informed and provided on 29.10.2020, the date of the arrest itself, which is in compliance with the decision of the Apex Court in D.K.Basu v- State of West Bengal [(1997) 1 SCC 416]. This he submits is established by the factum of signature of the petitioner on the foot of the arrest order dated 29.10.2020, as also the grounds of arrest dated 29.10.2020. It is only on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a letter, e-mail or fax immediately upon its receipt. For practical purposes, therefore, it must have proceeded on the basis that delivery of the letter to the appellant (or in this case his solicitor) amounts to the communication of its contents on the day of receipt. In my view the word inform is to be construed so as to give effect to that assumption. Added to this is the fact that Parliament has chosen to subject extradition proceedings to a clearly defined timetable under which steps have to be taken within limited periods. That is the case both with the procedure relating to appeals and with the process of extradition itself if there is no appeal. In each case time runs from the date on which the Secretary of State informs the person concerned of the order (s.117[of the Extradition Act 2003]). It is important, therefore, for that date to be capable of being ascertained with certainty. The time of transmission of fax and e-mail is recorded electronically and in the ordinary way there would be a very strong presumption that a letter dispatched by first class mail had been delivered the next business day. To interpret section 100(1) as requiring the Secretary of State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision. 190. The provision of Section 19(1) also does not state that the grounds of arrest are to be informed to the person arrested, immediately. The use of the word in the said provision as soon as may be , makes it clear that grounds of arrest are not to be to be supplied at the time of arrest itself or immediately on arrest, but as soon as may be. If it was the intention of the Legislature that in the Arrest Order itself the grounds of arrest should be stated, that too in writing, the Legislature would have made strict provision to that effect by using the word immediately or at the time of arrest . The fact that Legislature has not done so but used the words as soon as may be , thereby indicating that there is no statutory requirement of grounds of arrest to be communicated in writing and that too at the time of arrest or immediately after the arrest. The use of the words as soon as may be implies that such grounds of arrest should be communicated at the earliest. 191. Here, in the case it is not disputed that the detailed grounds of arrest were furnished in the Remand Report filed before the Special Court, immediately within 24 hours, when the Petitioner was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oin Akhtar Quereshi vs. UOI Ors. 2017 SCC OnLine Del 12108 , the relevant paragraphs are reproduced hereunder for easy reference: 65. On consideration of the aforesaid decision relied upon by learned counsels, the position, in law, which emerges is as follows: i. The procedural safeguards in clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also, to known exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may, without delay, apply its mind to his case. See Madhu Limaye (Supra). ii. Neither Section 19(1) of PMLA nor the definition of the expression order as given in Sub-Clause (h) of Rule 2, of the PMLA Arrest Rules provide that the grounds for such arrest are mandatorily required to be provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has been shown that the arrest made by the police officer is illegal, it is necessary for the State to establish that, at the stage of remand, the magistrate directed detention in jail custody after applying his mind to all relevant matters. See Madhu Limaye (supra). vi. 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. See N. Ratnakumari (Supra), Kanu Sanyal (Supra), Manubhai R.P. (Supra). vii. Once it is established that, at the stage of remand of the Petitioner, the Special Court has directed detention of the Petitioner after applying its mind to all the relevant factors, the orders of remand having thus cured the Constitutional infirmities, if any and such orders, prima facie, being not passed without jurisdiction or in a wholly illegal manner, then, the Writ for Habeas Corpus itself is not maintainable. See Chhagan Chandrakant Bhujbal (Supra). viii. If on the date of the hearing of the writ petition, it is shown that the detention of a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra) is per incurium as it has taken a contradictory view to that of an earlier Bench of co-equal strength of the same Court in Moin Akthar Khureshi s case (supra) by holding that the grounds of arrest have to be provided in writing to the accused person. 5.11. In this regard he relies on the decision of the Apex Court in Sandeep Kumar Bafna v. State of Maharashtra reported in (2014) 16 SCC 623. The said para is reproduced herein for easy reference: 19. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereto and more particularly as regards Guilt Standard, he submits that merely because the word guilt has been used under Section 19, it does not mean that the said finding of guilt beyond a reasonable doubt is to be established by the Investigating officer prior to the arrest of the accused. 5.18. A similar expression, reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life is found under Section 437 of Cr.P.C. By usage of the said word guilt , it does not mean that the accused is to be guilty of the offence punishable with death or imprisonment for life. The Investigating Officer is not a judge of a Court of law to adjudicate on the guilt or otherwise before arresting a person. 5.19. In criminal matters, there is no requirement for the Investigating Officer to issue a show-cause notice calling upon the accused to provide his defence, consider the same and pass a reasoned order and thereafter arrest the accused. In this regard, he relies upon the decision of the Apex Court in Prahlad Singh Bhati v. NCT, Delhi, reported in (2001) 4 SCC 280 , more particularly para 8 thereof which is reproduced hereunder f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of the stage at which the two sub-sections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Whereas after submission of charge-sheet or during trial for such an offence the Court has an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence. At that stage the degree of certainty of opinion in that behalf is more after the trial is over and judgment is deferred than at a pre-trial stage even after the charge-sheet. There is a noticeable trend in the above provisions of law that even in case of such non-bailable offences a person need not be detained in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he is guilty of such an offence. There will be, however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence, there should be materials produced before the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further the investigation. There is no timeframe in which they could be either resorted to early in the stage of the investigation, during the stage of investigation or after investigation. 5.26. On facts, he submits that there is enough and more material available on record to establish the guilt of the accused-petitioner, even if the same is required to be established at this stage. 5.27. In that, the relationship between Sri. Mohammed Anoop and the petitioner has been established, there is no denial of the same by the petitioner. Sri. Mohammed Anoop had been arrested by the NCB for having in his possession narcotic drugs and psychotropic substances of commercial quantity; NCB has registered a case against Mohammed Anoop under Section 22 and 27-A of NDPS Act which are scheduled offences under the PMLA. On the arrest of Mohammed Anoop, he has deposed that the petitioner is his boss, they have huge money transactions, huge amounts of monies have been deposited in the Bank accounts of Mohammed Anoop by the petitioner, the petitioner has been making use of the accounts to start restaurant established benami by the petitioner. By using a debit card in the name of Mohammed Anoop, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at which the Magistrate passed the remand orders was still the stage when Section 167 applied and not Section 344. The decision of the Orissa High Court in Artatran v. Orissa, [AIR 1956 Ori 129] to the effect that Section 344 does not apply at the stage of investigation and can apply only after the Magistrate has taken cognizance of and issued processes or warrant for the production of the accused if he is not produced before him cannot, in view of A. Lakshamanrao case be regarded as correct. The power under Section 344 can be exercised even before the submission of the charge-sheet, (of, Chandradip v. State [(1955) 3 BLJR 323 ] and Ajit Singh v. State, [(1970) 76 Cri LJ 1075 ] ) that is, at the stage when the investigation is still not over. If the view we hold is correct that Section 344 operated, the Magistrate, provided he complied with the condition in the Explanation, was competent to pass remand orders from time to time subject to each order being not for a period exceeding fifteen days. There can be no doubt that the Magistrate had satisfied that condition. The judgment of the High Court in para 11 points out that the prosecution case was that the appellant had himself m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible. 5.32. Dalip Singh v. State of U.P., reported in (2010) 2 SCC 114 more particularly para 1 to 10 thereof which are reproduced hereunder for easy reference: 1. For many centuries Indian society cherished two basic values of life i.e. satya (truth) and ahimsa (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice delivery system which was in vogue in the pre- Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that the award was not made by the Land Acquisition Officer within the time specified in Section 11-A of the Land Acquisition Act because of the stay order passed by the High Court. While dismissing the special leave petition, the Court observed: (SCC p. 263, para 2) 2. Curiously enough, there is no reference in the special leave petitions to any of the stay orders and we came to know about these orders only when the respondents appeared in response to the notice and filed their counter-affidavit. In our view, the said interim orders have a direct bearing on the question raised and the non-disclosure of the same certainly amounts to suppression of material facts. On this ground alone, the special leave petitions are liable to be rejected. It is well settled in law that the relief under Article 136 of the Constitution is discretionary and a petitioner who approaches this Court for such relief must come with frank and full disclosure of facts. If he fails to do so and suppresses material facts, his application is liable to be dismissed. We accordingly dismiss the special leave petitions. 6. In S.P. Chengalvaraya Naidu v. Jagannath [(1994) 1 SCC 1 : JT (1993) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut if there is miscarriage of justice. If the appellant has not come forward with clean hands, has not candidly disclosed all the facts that he is aware of and he intends to delay the proceedings, then the Court will non-suit him on the ground of contumacious conduct. 10. In K.D. Sharma v. SAIL [(2008) 12 SCC 481 ] the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G. Jayashree v. Bhagwandas S. Patel [(2009) 3 SCC 141 ]. 5.33. He submits that there is an arrest made of the petitioner under the NDPS Act would indicate that the NCB is of the opinion that the petitioner is involved in such offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is required to inform the grounds of arrest to the person being arrested, if so, is it oral information or does it have to be in writing? 9.1. The term 'Arrest' has not been defined under the Cr.P.C. or under the IPC, nor for that matter has it been defined under the PMLA. Arrest, as generally understood, is to restrain to stay, and in relation to a person connected to an offence or suspected to be connected to offence, an arrest would mean to detain and restrain a person. 9.2. Section 41 to 44 and 46 of Cr.P.C. deal with the arrest of a person, Section 41 empowering the police officer to arrest any person without a warrant, Section 42 empowering a Police officer to arrest a person who commits an offence in his presence, Section 43 enabling a private person to arrest any person who commits an offence in his presence and or a proclaimed offender, Section 44 deals with arrest by a Magistrate and Section 46 lays down the manner in which the arrest has to be made. 9.3. Extensive arguments have been addressed by both the Senior counsels on this aspect. Sri. Aravind Kamath, learned Senior counsel appearing for the petitioner by relying upon the decision of the Delhi H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this power are provided so that there is no abuse of such wide and far-reaching power. The power of arrest under Cr.P.C. is a general power, whereas the power to arrest under a special enactment is a special power conferred by the Special enactment, to be resorted to, used, as also circumscribed by the said special statute itself. 9.7. In the present case, the power to arrest is circumscribed by the PMLA itself. This power has to be exercised in the manner as provided under PMLA or not at all. Apart from the exercise of power to arrest in a particular manner, PMLA also provides or mandates that the arresting officer inform the arrestee of the grounds of his arrest at the earliest without any unnecessary delay so as to safeguard the individual freedom of that person who can on that basis apply for and seek for bail if so provided as held in Union of India v- Padam Narayan Agarwal [(2008) 13 SCC 305]. 9.8. The question is as to whether the arresting officer is required to only inform the grounds of arrest or provide the same in writing to the person arrested for an offence under the PMLA. The PMLA has various provisions relating to the offence of money laundering as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court can take into consideration the reasons for arrest as stated in the grounds for arrest where the standard is reason to believe that the arrestee is guilty of the offence and juxtaposing the same to the requirement provided under Section 45 of the PMLA for grant bail, i.e. for the accused/arrestee to establish that the said arrestee is not guilty of the said offence. This, in my considered opinion, cannot be done without both the reasons for arrest, i.e. grounds for arrest, as also grounds for the grant of bail being placed before the said Judge, which would essentially mean that the same is to be in writing and be capable of being produced by the accused before such Court. 9.15. There is considerable force in the submission made by Sri. Aravind Kamath learned Senior counsel that one of the safeguards put in place by the legislature to prevent abuse of the powers vested with the Authority under the PMLA is providing grounds of arrest to the arrestee. These grounds of arrest would not only have to be provided to the arrestee but also would form part of the case diary or the investigation file. Thus unless there are grounds sufficient to arrest a person which is recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e PMLA. I am of the considered opinion that it would, but, be required for the Arresting Officer to provide the grounds of arrest to any person being arrested under PMLA in writing, mere oral information would not be sufficient. In that regard, necessary acknowledgement from the arrestee would have to be obtained in writing confirming the receipt of the same in writing. 9.19. In the present case, the contention of Shri Aravind Kamath, learned Senior counsel is that the petitioner was not provided with grounds of arrest or the arrest order whereas Sri.S.V.Raju, learned Senior Counsel and ASG appearing for the respondent would contend that they have been so provided. 9.20. This aspect would have to be examined on the basis of the documents on record. The copies of the arrest order and grounds of arrest have been produced. A perusal of the same indicates that the petitioner has signed the same, thus indicating that those grounds were made known to and communicated to the petitioner. It cannot be therefore disputed that the grounds for arrest were communicated. 9.21. The question that remains is whether the same was handed over to the arrestee or not, which would have to be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and dear ones are provided with a physical copy of the arrest order or grounds of arrest to obtain their acknowledgement of having received the same. The court before whom the arrestee has been produced to mandatorily enquire about the providing of the physical copy of the arrest order and grounds for the arrest in writing and record the response of the arrestee in the order sheet under the signature of the arrestee and the like. 9.26. Thus I answer Point No.1 by holding that in terms of Section 19 of PMLA, the Investigating Officer or the arresting officer is required to inform and provide a physical copy of the arrest order and grounds of arrest to the person being arrested. Mere oral information would not be sufficient. 9.27. In the present case on facts having come to the conclusion that the grounds of arrest have been provided to the petitioner, I hold that requirement of Section 19 in providing grounds of arrest has complied with, and there is no infirmity in the same. 10. ANSWER TO POINT NO.2: Whether the expression reason to believe that any person has been guilty of an offence found under Section 19 of the PMLA Act requires a preliminary adjudication by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsel, there has to be an adjudication of guilt to be made by the arresting officer, whereas as per Sri. Surya Prakash V.Raju, learned Senior counsel and ASG, it is objective satisfaction of the arresting officer. 10.7. In the background of the submissions made, there is a need to examine Section 19 of the PMLA which has been extracted hereinabove. The operative portion of the provision is has on the basis of the material in his possession reason to believe (a reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act .. . 10.8. An examination of the above would indicate that the arresting officer should have reason to believe that a person is guilty of an offence . The reason to believe cannot be said to be an adjudication which is required to be performed by the Investigating Officer as regards the guilt of the person being arrested; the Investigating officer cannot be a Judge, jury and executioner. The investigating officer is only to investigate and place the material before the competent court for adjudication. 10.9. If the submission of Shri. Aravind Kamath, learned Senior coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion does not require for the arresting officer to pass an order recorded in writing holding the accused to be guilty, as sought to be contended by Shri Aravind Kamath. 10.13. Shri. Aravind Kamath learned Senior counsel has on facts further contended that the purpose of arrest as stated in the remand application and as stated in the grounds for arrest are different inasmuch as one of the grounds stated is that the petitioner is required to be arrested since otherwise he may tamper with evidence, deal with the proceeds of crime, etc., there is considerable force in the said submission. In my opinion though the possibility of the arrestee tampering with evidence or would be a ground for arrest in respect of other offences, the same would not be a sufficient ground to arrest any person under the PMLA, this being so because firstly, the investigating officer would have in normal circumstances already have taken possession of the evidence, thus obviating the possibility of tampering and secondly, in terms of Section 5 of the PMLA, the Investigating officer has the power to attach proceeds of crime and safeguard the said proceeds of crime, thus obviating the possibility of the arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the arrest is only for the purpose of safeguarding the proceeds of the crime and/or for the respondent being prevented from tampering with evidence is rejected. 10.18. The only requirement under the Act is the reason to believe by the Investigating officer or the arresting officer that the person is guilty of the offence . It is therefore not required for the Investigating officer to prove the purpose of arrest or even to make any submission as regards the requirement of arrest to protect the proceeds of the crime. Though of course, the same is not part of Section 19(1) as contended by Shri Aravind Kamath, learned Senior counsel, the same would be examined by the Court while granting bail to consider whether the person arrested is required to be retained in judicial custody for the reason that the said person may tamper with evidence and or with the proceeds of crime. Said factor would have to be considered at the time of granting of bail and not at the time of the arrest. Arrest and remand to police custody and thereafter to judicial custody, which would also include custodial interrogation, which is an essential weapon in the armoury of the Investigating Officer enabli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is his boss; he would act as per the instructions of the petitioner. The petitioner has invested money in his businesses, and he has transferred monies to the petitioner for use. The quantum of money has also been detailed, and the material on record available with the Investigating officer that the declared income of the petitioner compared to the amounts deposited in cash do not match with each other, the explanation given by the petitioner that he had borrowed money by mortgaging the property belonging to his mother-in-law has been prima facie proved to be false since no such loan had been obtained by the petitioner. No proper explanation was given by the petitioner during the course of his interrogation; there are serious offences that have been alleged against the said Mohammed Anoop and the petitioner and several others for offences under the NDPS Act, huge amounts of money had changed hands. It is suspected that these have been realized on account of trafficking or dealing with drugs which is a scheduled offence under the PMLA, therefore the money is suspected or believed to have been generated on account of such dealing with or trafficking in Narcotic or psychopathic sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recordal of the objective satisfaction with reference to the material on record is sufficient compliance of the requirement, and there is no infirmity in the arrest made. 11. POINT No.3- Whether the objective satisfaction of the guilt of the accused is required to be reduced to writing in the grounds of arrest formulated by the Investigating Officer? 11.1. As referred to and answered Point No.2 above, the objective satisfaction of the guilt of the accused can only be ascertained from the material on record, it cannot be expected of an Investigating Officer to in detail record the same in writing and form a part of grounds of arrest formulated by the Investigating Officer. However, the grounds of arrest are required to be sufficiently detailed out as to why a person is being arrested, in brief state as to what is the material available with the Investigating officer which would link the person to be arrested to an offence under the Act and why the person is believed to be guilty of the commission of such an offence. These factors, if contained in the grounds of arrest, would be sufficient, it would not be required for a detailed adjudicatory order to be made by the In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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