TMI Blog2013 (2) TMI 792X X X X Extracts X X X X X X X X Extracts X X X X ..... H. S. Venegaonkar, APP for the Respondents. ORDER 1. This is an application for bail by a person, who has been arrested by the Enforcement Directorate, for his involvement in an offence under Section 3 of the Prevention of Money Laundering Act, 2002 (for short called as, the Act ). The applicant was arrested on 14th December, 2012 and had been remanded to custody of Enforcement Directorate initially, and thereafter to judicial custody from time to time. On 2nd January, 2013, the Officers of the Enforcement Directorate forgot to apply in writing for extension of that custody. However, on oral submissions of the learned Public Prosecutor for the State, the learned Judge of the said Court has extended the custody till 6th February, 2013. The applicant seeks bail on the ground that he had been arrested by a person who had no authority to effect arrest and that the procedure prescribed under the law had not been followed resulting in violation of his rights under Articles 21 and 22 of the Constitution. 2. It was submitted that since the arrest itself was violative of fundamental rights, applicant s detention in custody is thoroughly unwarranted. It was also submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Section 49 of the Act provides that the Central Government may appoint such person as it thinks fit to be authorities for the purpose of this Act. Therefore, according to learned counsel, there has to be a notification by the Central Government, appointing the person to be Assistant Director or Deputy Director since these terms have been defined in section 2(1)(c), (j)and (k) of the Act, to mean persons appointed under Sub Section (1) of Section 49 of the Act. Therefore, according to learned counsel for the applicant, it would not be enough to show that person effecting arrest was an Assistant Director. He had to be an Assistant Director, appointed under sub section (1) of Section 49 of the Act. 6. Learned counsel next submitted that by notification dated 13th September, 2005, the Central Government appointed with effect from 1st July, 2005 the Assistant Director, holding the office immediately before the said date under The Foreign Exchange Management Act, 1999 (for short called as, FEMA as the Assistant Director for the purpose of this Act. Learned counsel for the applicant submitted that the officer who effected arrest is not shown to have been the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, 2005, would enable only Assistant Directors, who were actually holding the office under FEMA, to be the Assistant Director appointed under Sub-section (1) of Section 49 of the Act, would have to be rejected. It cannot be overlooked that over a period of time person holding such office may pass into oblivion and if the notification was to be interpreted to mean that a person holding post of Assistant Director but who may not have exercised powers under FEMA could not be the Assistant Director for the purpose of the Act, 2002, there may be a vacuum. 10. Learned counsel for the applicant next argued that the power of arrest under Section 19 of the Act, has to be exercised in accordance with the Rules. Reliance was placed on the definition of Arresting Officer under the Prevention of Money Laundering (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 Its Period Of Retention) Rules, 2005 (hereinafter referred to as the Rules ). The expression Arresting Officer has been defined under Clause of Rule 2(1) as under:- (c) Arresting Officer means the Director, Deputy Director, Assistant Dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In any case it is not necessary to go into that question since definition is only for the purpose of rules which have been framed for the restricted purpose of clauses (a) (p) of sub-section (2) of section 73 of the Act. Therefore, definition of arresting officer in these rules cannot be held to control the provisions of Section 19 of the Act or to require that the Central Government has to issue notification under those rules for authorising an officer to effect arrest. The definition would have to be read in conformity with the provisions of Section 19 of the Act and the most appropriate interpretation may be that as far as Directors, Deputy Directors, or Assistant Directors are concerned, no authorisation of the Central Government is required, and while any other officer could also be authorised by the Central Government, if such other officer has to be authorised, a notification by the Central Government would be required. Thus, there is no substance in the contention that the Assistant Director who effected arrest lacked the authority to arrest. Therefore, there is no violation of any procedural safeguards which the applicant had and he cannot be said to have suffered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, there can be no question of the Central Government issuing notification the Assistant Director from the authorities who are exercising power of arrest. Therefore, this notification too does not help the applicant in contending that he has been arrested by the officer who had no authority. 18. It was next submitted that the applicant is shown to have been involved only in offences under part B to the schedule of the Act. Section 45 of the Act, imposes additional limitations on the power of granting bail to person who are involved in offences under part A of the schedule. It was submitted that since the applicant is not a person who is alleged to have committed offence under part A of the Schedule, restrictions under Section 45 would not apply and therefore, the case of the applicant would have to be dealt with as an ordinary application for bail without any additional limitations. There can be no doubt about this proposition, since offences which the applicant is alleged to have committed are under part B of the schedule to the Act. 19. Learned counsel for the applicant submitted that applicant has been arrested on 14th December, 2012 and is in judicial custody now. He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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