Feedback   New User   Login      
Tax Management India. Com TMI - Tax Management India. Com
Acts / Rules Notifications Circulars Tariff/ ITC HSN Forms Case Laws Manuals Short Notes Articles SMS News Highlights
        Home        
Extracts
Home List
← Previous Next →

Sayed Mohamed Masood Versus Dr. Shanmugham, Directorate of Enforcement

2013 (2) TMI 792 - BOMBAY HIGH COURT

Application for bail - Held that:- Considering the magnitude of the offence and the fact that in the past applicant had not cared to respondent to the summonses of the department, the possibility of the applicant not being available for investigation or trial cannot be entirely ruled out. This is more so because of magnitude of the crime. He was arrested, does not show that he would not abscond in future. Expecting that the authorities dealing with this investigation may complete the investigati .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

P. Shinde, for Enforcement Directorate Mr. S. R. Shinde and Mr. 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 custo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing 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 that the applicant s detention in custody is not warranted since the applicant is involved in an offence covered in part B of the Schedule to the Act and provisions of Section 45 of the Act, by implication do not warrant denial of bail to such person. 3. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ll over country have been duped into parting with large sums and the adjudicating authority has confirmed provisional attachment of properties worth ₹ 108 crores. It was also stated that the applicant did not cooperate with the Investigating authorities and inspite of issuance of 32 summons did not appear before the authority. It was pointed that the applicant had not complied with the conditions of bail granted in other offences and the authorities believe that the applicant may abscond a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

dvocate General. 5. Both of them unfolded all aspects of provisions of the Act and the Rules thereunder, with reference to the facts of the case at hand. Learned counsel for the applicant submitted that the applicant had been arrested by the Assistant Director, who had not been authorised to effect arrest. He submitted that Section 19 of the Act empowers the Director, Deputy Director or Assistant Director to effect arrest. However, the officers such as Director, Assistant Director or Deputy Dire .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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, 200 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s pointed out that there is notification dated 21st April, 2010, issued by the Ministry of Finance(Department of Revenue), in the exercise of powers conferred under sub section (1) of Section 49 the Act. By this notification, the Central Government appointed Enforcement Officers in the Directorate of Enforcement, appointed under Section 36(2) of FEMA, to be the Assistant Director for the purpose of the Act. Section 36 of the FEMA reads as under:- 36. Directorate of Enforcement (1) The Central Go .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n Assistant Director of Enforcement. (3) Subject to such conditions and limitations as the Central Government may impose, an Officer of Enforcement may exercise the powers and discharge the duties conferred or imposed on him under this Act. 8. It would be clear from this provision that even an Officer below the rank of Assistant Director of Enforcement could be authorised as Enforcement Officer and by virtue of notification dated 21st April, 2010, such officer, even though below rank of Assistan .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ection 18 and 19 of the General Clauses Act, the successor would also be the person who has been authorised and referred to by his official title. Therefore, the argument that notification dated 13th September, 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f 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 Director or any other officer, authorized in this behalf by the Central Government by general or special .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

(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 . 12. Learned counsel for the applicant submitted that Arresting Officer has to be one who has been authorised in this behalf by the Central Government by general or special order to exercise power of arrest under Sub-section (1) of Section 19 of the Act. The learned Advoca .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

clauses (a) and (p) of Sub-section (2) of Section 73 of the Act. These clauses (a) and (p) of Section 73(2) read as under: 73. (2) (a) the form in which records referred to in this act may be maintained; (p) the manner in which the order and the material referred to in sub section (2) of Section 19 shall be maintained. 14. The rules were, thus, framed in order to prescribe forms in which records were to be maintained and the manner in which order and material referred to in Sub-section (2) of s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

by not following the procedure established by law in effecting his arrest. 15. The observations of the Supreme Court in Shri. Gurbaksh Singh Sibbia and ors -vs- State of Punjab, reported in (1980) 2 SCC 565, do not help the applicant since there is no breach of procedural safeguards provided in the Act. Since there is no violation of Articles 21 and 22 of the Constitution of India, in effecting the arrest of the applicant, even judgment of this Court in Suaibo Ibow Casamma -vs- Union of India, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

vention of Money laundering Act, 2002 (15 of 2003), the Central Government hereby appoints, with effect from the 1st day of July, 2005, the Director of Enforcement holding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999), as the Director to exercise the exclusive powers conferred under section 5, section 8, section 17, section 18, Section 19, Section 20, Section 21, subsection (1) of section 26, section 45, section 50, section 57, section 60, s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Act, to the exclusion of all other officers. It only shows that the Director has the exclusive power but not necessarily to the exclusion of others, who have been empowered under the Act. Since the act itself does not provide for any power in the Central Government to issue notification abridging the powers statutorily conferred on the authorities under the Act, there can be no question of the Central Government issuing notification the Assistant Director from the authorities who are exercising .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 14 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

Discussion Forum
what is new what is new
 


Share:            

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version