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2018 (2) TMI 1327 - DELHI HIGH COURTOffence under PMLA - Seeking issuance for a writ of habeas corpus for releasing the Petitioner from custody - Are the PMLA offences cognizable? - Held that:- 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 basic idea is not merely to inform the person arrested of the grounds of arrest but to also furnish him a copy thereof. Even Rule 3 (1) of the PML Arrest Rules requires the order and material to be forwarded to the Adjudicating Authority. The Court is conscious that in Vakamulla Chandrashekhar v. Enforcement Directorate (2017 (7) TMI 177 - DELHI HIGH COURT) a Division Bench of this Court came to the opposite conclusion and held that notwithstanding the 2005 amendment to Section 45 PMLA, there is no positive indication in Section 45 that the offences under the PMLA had become non-cognizable. Admittedly the arrest of the Petitioner in the present case has taken place without following Section 19 PMLA read with the relevant PML Arrest Rules and Form III. The grounds of arrest were furnished not “as soon as may be” as mandated by Section 19 (1) PMLA but only along with the short reply filed on 13th February 2018 more than two weeks after the arrest. Also, it is doubtful that the said grounds would have been furnished if the present petition had not been filed. That prima facie renders the arrest of the Petitioner illegal. Added to this is the failure to follow the detailed guidelines pertaining to arrest as laid down in D.K. Basu v. State of West Bengal (1996 (12) TMI 350 - SUPREME COURT) which as clarified by the Supreme Court applies with equal force to “other governmental agencies” which expressly included the DOE.. Maintainability of the writ of habeas corpus - Held that:- Finally, on whether a petition seeking a writ of habeas corpus is maintainable, the Court is again unable to subscribe to the view expressed in Moin Akhtar Qureshi (2017 (12) TMI 289 - DELHI HIGH COURT) that only because the trial Court is now seized of the matter and has ordered the remand of the Petitioner, this Court cannot entertain the present petition. Consistent with judicial discipline, since this Bench is of the view that the decisions of the coordinate Bench of this Court in Moin Akhtar Qureshi v. Union of India (supra) and Vakamulla Chandrashekhar v. Enforcement Directorate [supra] require reconsideration, it refers to a larger Bench, the following questions for consideration: (i) Consequent upon the amendment in Section 45 of the PMLA with effect from 1st July 2005, are the offences under the PMLA cognizable or noncognizable? (ii) Do the provisions of Chapter XII Cr PC apply to PMLA insofar as the offences under the PMLA are concerned and if so, to what extent? (iii) Under Section 19 of PMLA read with Rules 2 (h) and 2 (g) of the PML Arrest Rules read with Rule 6 and Form III thereof, does a person arrested under Section 19 (1) of the PMLA have to be furnished a copy of the grounds of arrest? If so, should they be furnished soon enough to enable the person arrested to apply for bail or to oppose the application for remand? What are the consequences of the failure to do so? (iv) Notwithstanding that the remand of the person arrested is under the orders of a Competent Court under the PMLA, will a writ of habeas corpus still maintainable if the initial arrest is itself shown to be unlawful? (v) In the context of the above questions, do the decisions of the Division Bench of this Court in Vakamulla Chandrashekhar v. Enforcement Directorate (supra) Moin Akhtar Qureshi v. Union of India (supra) require reconsideration? The writ petition now be placed before the Hon’ble the Acting Chief Justice for being referred to a larger Bench to answer the above questions. Seeking interim bail - Held that:- The Petitioner has been in custody since 25th January 2018. The DOE had, through orders of the trial Court, his custody extended till 7th February 2018. He now stands remanded to judicial custody by the order of the trial Court. The DOE has not explained why it requires the Petitioner to remain in judicial custody. On the part of the Petitioner, the Court has been assured that he would continue to cooperate with the DOE and appear as and when required subject to whatever terms that the Court may direct. For the aforementioned reasons, the Court directs that the Petitioner be released on bail during the pendency of the present writ petition subject to execution of bond and other detailed formalities.
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