GST Helpdesk   Subscription   Demo   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2013 (2) TMI 792 - BOMBAY HIGH COURT

2013 (2) TMI 792 - BOMBAY HIGH COURT - TMI - 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 th .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

i Mohite Dere, Public Prosecutor a/w Mrs. P. 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 Directorat .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ed 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 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 n .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

led that more than one lac investors spread all 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 authori .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ounsel for the applicant as well as learned Advocate 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 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

ector 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 Govern .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ification dated 13th September, 2005. 7. It is 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. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t officers of Enforcement below the rank of an 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, suc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Advocate General, in view of provisions of Section 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 .....

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 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 Director or any other officer, authorized in this behalf by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

material in his possession reason to believe (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) .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

have been framed in exercise of powers under 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to have suffered by any eclipse of his rights 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d by sub-section (1) of Section 49 of the Prevention 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, sect .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ction 5, 8, 17, 18, 19, 20, 21, 26, 28 of the 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 Dir .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tted 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 sub .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mitted that the applicant may be admitted to bail. 20. Learned Advocate General pointed out that the Assistant Director in his affidavit-in-reply, has stated about the gravity of offence for which, applicant has been arrested. He has also pointed out that the applicant is involved in cheating 5000 persons in the crime for which he has been arrested and about one lac investors all over country in other offences for which 42 F.I.Rs have been registered. The applicant has propensity to abscond and .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

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

Go to Mobile Version