TMI Blog2016 (3) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... l which was dismissed by this Court on 10.9.2015. Secondly, there is no change in the circumstances thereafter which could possibly justify the petitioner's second attempt to evade judicial custody. The summoning of an accused in the case of a non-bailable offence through ordinary process and/or coercive means is discretion of the Court though to be exercised judiciously and by striking balance between the right to liberty vis-a-vis the legislative intendment in declaring the gravity of an offence. The only caveat is that the mode of securing presence cannot be resorted to mechanically. There ought to be due application of mind so that the reasons for invoking coercive means of securing presence are well elicited. The petitioner (Ball ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nior Panel Counsel ORDER Surya Kant, J ( Oral ) 1.) This order shall dispose of CRM-M-32721 of 2015 and CRM-M-32162 of 2015 as the point in issue involved is similar in nature. Facts are being extracted from CRM-M-32721 of 2015. 2.) The petitioner seeks quashing of order dated 21.7.2015 passed by the Designated Court under the Prevention of Money Laundering Act, 2002 (for short 'the 2002 Act') whereby the Special Court after forming a prima facie opinion that an offence under Section 3 punishable under Section 4 of the 2002 Act was made out, has summoned the petitioner through warrants of arrest. 3.) The aforementioned order has been passed by the Special Judge in a complaint filed under Section 45 (1) of the 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectorate has alleged that the petitioner or his family members did not file any income tax return; have no PAN number and the immoveable properties owned by them by making payments in cash are thus the proceeds of crime derived from trafficking and dealing in drugs. 4.) The petitioner also owns some of the immoveable properties and luxury vehciles independently or jointly with his parents. 5.) In the NDPS case registered vide FIR No.60 dated 1.6.2012 under Sections 21, 29, 61, 85 of the NDPS Act at Police Station Kartarpur, District Jalandhar, the petitioner and his mother (Rajwant Kaur) were arrested but the prosecution having failed to submit the challan within the statutory period contemplated under Section 36-A of the NDPS Act tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rants of arrest. The learned Single Judge stayed operation of that order on 19.9.2015 and later on referred the matter to list it before Division Bench in view of the orders passed by the Hon'ble Supreme Court in a bunch of NDPS cases in SLP (Crl.) No.272 of 2015 (Maninder Singh @ Bittu Aulakh Vs. State of Punjab) . 10.) Once his mother got the interim relief, the petitioner has also filed this second petition, now questioning the legality of the order dated 21.7.2015 to the extent of his summoning through warrants of arrest. 11.) We have heard learned counsel for the parties and gone through the relevant record. 12.) With a view to wriggle out of the impact of the order dated 10.9.2015 whereby this Court declined pre-arrest ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 2002 Act is cognizable and non-bailable. She cites the decision of the Hon'ble Supreme Court in Gautam Kundu Vs. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement AIR 2016 SC 106 which explains the legislative policy behind the 2002 Act and holds that the conditions specified under Section 45 are mandatory and need to be complied, moreso when the said provision is read with Section 65 and 71 of the 2002 Act. 14.) Having given our thoughtful consideration to the rival submissions, we are satisfied that the petitioner does not deserve to any protection against his arrest or subjection to the judicial custody for more than one reasons. Firstly, all the grounds now taken by him were very much available i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Enforcement in its complaint are at least prima facie not trustworthy. 18.) The petitioner (Bally Singh Kandola) is statedly a U.S. Citizen. One kilogram heroin is alleged to have been recovered from him and his mother. He has different bank accounts in US and UK. He has been studying abroad though he is said to have admitted in his statement before the Directorate that his parents did not file their income tax returns . Taking into consideration the totality of the circumstances and having regard to the gravity attached by the Legislature to the nature of offences defined under the 2002 Act especially the mandatory nature of Section 45 of the 2002 Act, it cannot be said that the summoning of the petitioner through warran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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