TMI Blog2016 (9) TMI 265X X X X Extracts X X X X X X X X Extracts X X X X ..... h person can be arrested only upon execution of warrant if issued by the Court taking cognizance. - CRWP No. 971 of 2016 - - - Dated:- 22-7-2016 - MR. M.JEYAPAUL AND MRS. SNEH PRASHAR, JJ. For The Petitioner : Mr. Kanhiya Soni, Advocate M.JEYAPAUL, J. 1. On asking of the Court Mr. V.K. Kaushal, Advocate took notice for Union of India. 2. Heard the submissions made on either side. 3. The petitioner is a practicing advocate, who has invoked extra ordinary writ jurisdiction under Article 226 read with 227 of the Constitution of India, in respect of a PMLA Complaint No.4 of 2015 filed by an authority under PMLA before the Special Court for PMLA at Mumbai in ECIR no. ECIR/14/MZO/2013 inter alia against M/s Namdhari Food International Pvt. Ltd., Shri Inder Singh Bal, Shri Iqbal Singh Bal, Shri Surjit Singh Bal, M/s. Namdhari Rice and General Mills, Shri Daljit Singh Bal, Shri Jaspal Singh Bal and Jai Singh Bal, collectively known as Namdhari Group of Sirsa, Haryana. The said ECIR was registered on the basis of Scheduled offences alleged in FIR No. 216 of 2013 registered u/s 120B, 409, 465, 467, 468, 471, 474, 477(A) of IPC inter alia against the said two compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 6. For the purpose of the adjudication of the legal issues involved in the instant petition, detailed allusion on allegations in the PMLA Complaint no. 4 of 2015 as stated in the writ petition is not warranted. It would suffice to say that around June 2016 cognizance was taken by the Special Court for PMLA at Mumbai in the said PMLA Complaint No.4 of 2015. There is no dispute on the fact that during the investigations under PMLA, these accused persons were not arrested by the authorities under section 19 of PMLA. After filing of Complaint, Process was issued by issuing summons to the accused including the aforesaid accused nos. 52 to 55 and 60 to 63 from Sirsa, Haryana, who allegedly committed offence under PMLA within the jurisdiction of this Hon ble Court. 7. At the outset, we may say that we find no merit whatsoever in the arguments of the petitioner and are not inclined to take a view different from that taken by the co-ordinate Division Bench of this Court vide order dated 1.10.2015 in CRM NO. M-28490 of 2015 in the matter of Dalip Singh Mann and Ors vs. Enforcement Directorate , or even for considering reference to larger bench. We are giving detailed reasons for ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for arresting any person under section 19(1) of PMLA, an authorized officer shall have on the basis of material in his possession, reason to believe, which is to be recorded in writing, that such person has been guilty of an offence punishable under PMLA. Section 19 (3) provides that every person so arrested shall be taken to the jurisdictional Judicial Magistrate or Metropolitan Magistrate within twenty-four hours, which shall exclude the time necessary for the journey from the place of arrest to the Magistrate s Court. This time of twenty-four hours denotes that if investigation cannot be completed within this time so as to file a Complaint, the arrested person shall be produced before Court for appropriate action i.e. either remand to appropriate custody or his release on bail or bond. However, section 45 of PMLA creates an embargo on release on bail or on his own bond if such person is accused of an offence punishable for a term of imprisonment of more than three years under Part- A of the Schedule with exception regarding persons mentioned in the first proviso to section 45(1), unless the following two conditions are satisfied- ( i ) the Public Prosecutor has been given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 37 of the said Act. The Hon ble Supreme Court was pleased to observe that : 11 It is this context in which Section 37(1)( b ) has to be construed wherein are specified the limitations on granting of bail. We must, therefore, look to the corresponding provision in the Code of Criminal Procedure with which Section 37(1)( b ) of the Act can be treated to be inconsistent. In the Code of Criminal Procedure, it is Section 437 and not Section 167 which is the corresponding provision for this purpose. The corresponding limitation on grant of bail in case of non-bailable offences under Section 437 is as follows: ( i ) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; In other words, under Section 437 of the Code the person is not to be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence while according to Section 37 of the NDPS Act, the accused shall not be released on bail unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence .. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions under Section 437 of the Code of Criminal Procedure and were enacted only for this p urpose; and t hey d o not have the effect of excluding the applicability of the proviso to sub-section (2) of Section 167 CrPC which operates in a different field relating to the total period of custody of the accused permissible during investigation . 14. In our opinion, in order to exclude the application of the proviso to sub-section (2) of Section 167 CrPC in such cases an express provision indicating the contrary intention was required or at least some provision from which such a conclusion emerged by necessary i mplication. A s shown by us, there is no such provision in the NDPS Act and the scheme of the Act indicates that the total period of custody of the accused permissible during investigation is to be found in Section 167 CrPC which is expressly applied. The absence of any provision inconsistent therewith in this Act is significant . 11. On the same principles, in absence of anything inconsistent in PMLA with section 88 of CrPC, when a person voluntarily appears before the Special Court for PMLA pursuant to issuance of process vide summons or warrant, and offers sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where the petitioners were summoned to face trial in a Statutory Complaint titled Niranjan Singh, Assistant Director, Directorate of Enforcement, Jalandhar, Government of India Vs. Balshinder Singh and others filed under Section 45 (1) of PMLA. It was an admitted fact that during investigation of the money laundering case, those petitioners were never arrested by the Enforcement Directorate in exercise of its powers under Section 19 of the Act. Since those petitioners showed their willingness to appear before the Trial Court and to furnish bonds, vide the interim order dated 26.8.2015, they were permitted to appear before the Court of learned Sessions Judgecum- Special Judge, Patiala with a direction to admit them to interim bail on furnishing bail bonds to the satisfaction of that Court. In this fact situation section 88 of CrPC was applicable, and hence there was no reason for the co-ordinate Bench to take any other view than logically taken by it. Moreover, the view taken by the co-ordinate Bench is also in consonance with the guidelines laid down for criminal courts by the Hon ble Delhi High Court in Court on its own Motion v. State through CBI, 2004 (1) JCC 308 which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples governing grant or refusal of bail. 14. Even a three judge Bench of the Hon ble Supreme Court in Inder Mohan Goswami Vs. State of Uttranchal, (2007) 12 SCC 1 was pleased to lay down the following guidelines- 49. Non-bailable warrant should be issued to bring a person to court when summons or bailable warrants would be unlikely to have the desired result. This could be when: it is reasonable to believe that the person will not voluntarily appear in court; or the police authorities are unable to find the person to serve him with a summon; or it is considered that the person could harm someone if not placed into custody immediately. 51. In complaint cases, at the first instance, the court should direct serving of the summons along with the copy of the complaint. If the accused seem to be avoiding the summons, the court, in the second instance should issue bailable warrant. In the third instance, when the court is fully satisfied that the accused is avoiding the court s proceeding intentionally, the process of issuance of the non-bailable warrant should be resorted to. Personal liberty is paramount, therefore, we caution courts at the first and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioners were never arrested by the Enforcement Directorate in exercise of its powers under Section 19 of the Act; (v) It further appears that rigors of Section 45 (1)(ii) of the Act would be attracted only while considering the bail plea of an accused who has been arrested by the E.D. Under Section 19 of the Act; 6) Taking into consideration the totality of the circumstances, the interim order dated 26.8.2015 is made absolute. 18. In view of the detailed reasoning recorded hereinabove- (a)We have no hesitation in concurring with the above view already taken by the co-ordinate Division Bench of this Court in Dalip Singh Mann and Ors vs. Enforcement Directorate (supra) that rigors of Section 45(1)(ii) of PMLA would be attracted only while considering the application of an accused for release on bail or his own bond, if he has been arrested by the authorized officer under Section 19 of the PMLA before taking cognizance. (b) In other words, if any person though available was neither arrested during investigation under PMLA, nor produced in custody as envisaged in Section 170 Cr.P.C, if upon issuance of process in a PMLA Complaint either by summons or war ..... X X X X Extracts X X X X X X X X Extracts X X X X
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