9911796707
TMI Blog2016 (12) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the parties, heard finally at the stage of admission itself. 4. By this Petition, filed under Articles 226 and 227 of the Constitution of India, (for short, "the Constitution"), the Petitioner is seeking issuance of Writ of Habeas Corpus or such other appropriate writ, order or direction for his forthwith release from the custody by setting aside impugned arrest order dated 14th March 2016 and the consequent remand orders, on the count that they are manifestly improper, illegal, without jurisdiction, null and void ab initio on the touch-stone of Articles 14, 21 and 22 of the Constitution of India. 5. This relief is claimed by the Petitioner in the conspectus of the following facts :- The Petitioner is a citizen of India and the then PWD Minister in the State of Maharashtra. In a Public Interest Litigation No.23 of 2014 filed by the Aam Aadmi Party and its office bearers, who is intervener in this petition, the grant of contract for construction of "New Maharashtra Sadan" at Delhi was questioned, inter alia, alleging irregularities, lack of transparency and apprehending transfer of funds indirectly to the Petitioner. In the said Public Interest Litigation, on 18t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner that, thereafter, on 17th June 2015, an Enforcement Case Information Report, bearing No.ECIR/MBZO/07/ 2015, was registered in the office of Respondent No.2 in Mumbai. However, Sections 154 to 157 of the Code of Criminal Procedure, 1973, (for short, "the Code"), were not complied with. The copy of the said ECIR was supplied to the Petitioner along with the complaint. Another Enforcement Case Information Report, bearing No.ECIR/MBZO/08/2015, was also registered in respect of separate FIR No.69 of 2015 dated 13th June 2015, concerning Taloja Police Station, New Bombay. The Petitioner is, however, not arraigned as accused in the said FIR. 9. The grievance of the Petitioner is that, in respect of these Enforcement Case Information Reports, (for short, "ECIR"), he was summoned, for the first time, on 14th March 2016 and, accordingly, he appeared before Respondent No.2 in his office on the same day, at about 10:30 hours, to co-operate him in the investigation. However, the Petitioner had been restrained from moving out of the office, even for taking lunch, and was, thus, illegally taken in custody by restraining his movements. It is his further contention that to show that his arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his family members had generated huge illicit funds, which were money laundered during the period from 2006 to till date. The specific allegations against him, as disclosed in the Criminal Complaint No.2 of 2016 dated 30th March, 2016, filed against him, by the Assistant Director, Directorate of Enforcement, Mumbai are to the effect that M/s.K.S. Chamankar Enterprises secured R.T.O. development project from the Maharashtra Government by misrepresentation and fraud and in connivance with the Petitioner and other public servants. The established norms were bypassed and the project of Maharashtra Sadan was given to M/s.K.S. Chamankar on a platter in defiance of rules and regulations prevalent in the matter. The project was amounting to Rs. 4,700 Crores (at the price, then, prevailing in the year 2006). It was awarded to a contractor having hardly any experience of undertaking such a huge project, or having any resources to execute the same. The proceeds derived out of this criminality were to be shared between the conspirators including M/s.K.S. Chamankar Enterprises, their partners and their associates, M/s. Prime Builders and Developers, their partners and associates, namely, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 3rd May 2016 before the Special Court, which came to be rejected by the order dated 13th May 2016. Petitioner, therefore, preferred Criminal Bail Application No.1050 of 2016 in the said case on medical grounds before this Court. The said Bail Application also came to be rejected by the learned Single Judge of this Court vide his order dated 16th June 2016. As a result, the Petitioner is still in the custody. 17. The Petitioner thereafter preferred Criminal Writ Petition No.2744 of 2016 before this Court, seeking a Writ of Habeas Corpus, amongst other Writs, while challenging the vires of Sections 45 and 49 of PML Act, or, for reading them down and seeking Writ of quo- Warranto qua the Respondent No.2. In the said Writ Petition, on 27th September 2016, Respondent Nos.1 and 2 sought time to file reply and the matter was adjourned to 27th September 2016. Meanwhile, Petitioner came to know about the Judgment of Punjab and Haryana High Court in the case of Gorav Kathuria Vs. Union of India and Ors., [Dated 11th May 2016 in Criminal Writ Petition No.595 of 2016], wherein Section 45 of PML Act has been read down by the Division Bench of Punjab and Haryana High Court and the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-cognizable, there is an embargo on the Special Court also for taking cognizance of the offence, except upon a complaint in writing made by the authorized officer. Here in the case, it is urged that, as the complaint was filed much after the Petitioner was arrested and produced for remand before the Special Court, his arrest is illegal, being against the procedure established by law. 20. It is submitted by learned Senior Counsel for the Petitioner that when the offence is non-cognizable, then, not only the procedure required under Section 155(1) of the Code needs to be followed, but the remaining provisions of the Code also come into play. Here in the case, the provisions, which are required to be followed by the concerned authorized officer while effecting the arrest, as laid down in Chapter XII of the Code from Sections 154 to 173, are not at all complied with. It is submitted that these are the mandatory procedural safeguards, which were required to be followed by the Investigating Agency; whether the Investigating Agency is the Enforcement Directorate or the Police Officer; especially, when it pertains to the personal liberty of the Petitioner, which is guaranteed under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f these safeguards were followed in the instant case, as the FIR itself was not registered before arrest of the Petitioner. According to learned Senior Counsel for the Petitioner, though there was a specific direction in the Public Interest Litigation that after lodging of the FIR, as per the procedure laid down by the Hon'ble Supreme Court in the case of Lalita Kumari (supra), the Enforcement Directorate and the Director, Anti-Corruption Bureau, may proceed with investigation, no such direction was followed. It is urged that as per the law laid down by the Apex Court in the case of Lalita Kumari (supra), conducting an investigation into an offence after registration of FIR under Section 154 of the Code is the 'procedure established by law' and, thus, is in conformity with Article 21 of the Constitution. It is submitted that as no such FIR was lodged in the instant case before arrest of the Petitioner, that Constitutional safeguard for the protection of the citizen is violated in the instant case, thereby making the Petitioner's arrest illegal. 23. Next, it is submitted by learned Senior Counsel for the Petitioner that no such Case Diary, as was required to be mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the arrest of the Petitioner in the instant case being against the procedure established by law. 25. The next thrust of the Petitioner, in the instant case, for challenging his arrest as illegal and unauthorized, then pertains to the competence and authority of Respondent No.2 to arrest him. It is submitted that Section 19 of the PML Act contemplates that only an officer authorized by the Central Government has power of arrest. Here in the case, it is submitted that no notification is produced on record to show that Respondent No.2 was authorized by the Central Government to exercise the power of arrest. It is urged that as per the Notification No. GSR 441(E) dated 1st July 2005, which has not been rescinded till the date, the power of arrest has been conferred by the Central Government exclusively upon the Director of Enforcement holding office under the Foreign Exchange Management Act, 1999. No such power under Section 19 of PML Act is conferred on any other Director. Admittedly, Respondent No.2 is not the Director but an Assistant Director and in the absence of any notification, produced on record to show that he has been authorized by the Central Government to exercise the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner to challenge his remand to the custody by filing Criminal Revision Application or a Writ Petition under Article 227 of the Constitution. 29. It is specifically denied by the Respondents that the offence under Section 4 r/w. Section 3 of PML Act, for which the Petitioner is arrested, is non-cognizable. The attention of the Court is invited to the head-note of Section 45 of the PML Act, which reads as "offences are cognizable and non-bailable". It is urged that this head-note clearly suggests that the offences are cognizable and non-bailable. It is submitted by learned Additional Solicitor General Shri Neeraj Kaul that, in several of its Judgments, the Hon'ble Supreme Court has been pleased to hold that the head-notes are to be read as part of the Section and they cannot be segregated or separated from the provisions. By pointing out to the contents of Section 45(1) of the PML Act, it is submitted that the said section also clarifies that this provision overrides the provisions of the Code and further de-bars Police Officers from investigating into the offences under PML Act. 30. It is urged that the amendment carried out to Section 45 of PML Act in the year 2005, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the offences, apply only to the Police Officers and the said provisions are not applicable to the persons and authorities effecting arrest under the other Acts. Respondent No.2, the Assistant Director, is an officer under the Enforcement Directorate, appointed as an authority, under Sections 48 and 19 of the PML Act, to effect the arrest on the basis of the provisions contained in the PML Act; especially Section 19 of the Act, and, therefore, having regard to Section 71 of the PML Act, giving overriding effect to these provisions, all the contentions raised by the Petitioner to challenge his custody as illegal and unauthorized fell on the ground. 34. As to the ground raised by the Petitioner that Respondent No.2, who was the then Assistant Director of Enforcement, Directorate Department, was not authorized to effect the arrest, it is submitted that, as Respondent No.2 was one of the authorities appointed for the purpose of PML Act, it is clear that in view of Sections 48 and 49 r/w. Section 19 of PML Act that he was the 'officer' appointed to exercise the power of arrest and, therefore, he was competent and authorized to arrest the Petitioner. Therefore, the challenge to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Shri Neeraj Kaul for Respondent Nos.1 to 3, and Shri Shinde, learned Public Prosecutor for Respondent No.4-State and learned Counsel for intervener Shri Shenoy at length, we are of the considered opinion that for appreciating these rival submissions, one has to take recourse not only to the various Judgments cited at Bar by both the parties, but also to the provisions of PML Act, in detail, including the objects and reasons, for the purpose of which this PML Act was brought on the Statute Book. 39. However, before adverting to the provisions of PML Act, it would be necessary to deal, firstly, with the maintainability of this Petition, as challenged by learned Additional Solicitor General for the Respondents. Maintainability of Petition for Habeas Corpus 40. In this case, the Petitioner is seeking the relief of habeas corpus on the ground that his arrest by Respondent No.2 and his subsequent detention in the custody, as per the remand granted by the Special Court, is illegal and void ab initio. Hence he is entitled for his release; whereas, according to Respondents, the Petitioner was arrested and taken into custody for committing an offence under Section 4 r/w. Section 3 of PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est date with reference to which the legality of the detention can be challenged in a habeas corpus proceeding is a date of filing of the application for habeas corpus and not any other date. As on the date of filing of Habeas Corpus application, the detention of the Petitioner Kanu Sanyal was in the District Jail at Vizakhapatnam, it was held that legality of his earlier detention need not be considered. As regards the third ground, it was held that the conditions laid down were clearly satisfied and hence there was no question of granting relief. While concluding, in last paragraph, it was categorically held that, " a Writ of Habeas Corpus cannot be granted when a person is committed to jail custody by the competent Court by an order, which, prima facie, does not appear to be without jurisdiction or wholly illegal." (emphasis supplied) Accordingly, the Petitioner was held not entitled to a Writ of Habeas Corpus to free him from detention. 43. Learned Additional Solicitor General has in this respect also placed reliance on the judgment of the Hon'ble Apex Court in the case of Ram Narayan Singh vs. The State of Delhi & ors., AIR 1953 SCC 277, to submit that in habeas corpus p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who is arrested, shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice". 45. Considering that Madhu Limaye and others had made a positive assertion in their Petition that they had not been informed of the grounds of their arrest and the said assertion had remained uncontroverted, having regard to the specific mandatory safeguard laid down in clause (1) of Article 22 of the Constitution, in para No.14, it was observed by the Hon'ble Apex Court that; "14. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr. Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anifestly illegal and null, being without jurisdiction. The Petitioner has to then further show that the Magistrate or the Special Court in this case, which has granted his remand, has not applied its mind to all the relevant matters and the remand orders are either patently routine or appear to have been made mechanically. Only when these essential two conditions are satisfied, the Petition for Habeas Corpus can lie, otherwise, as held in the above-said authority of Kanu Sanyal (supra), if the person is committed to Jail custody by a competent Court by an order, which, prima facie, does not appear to be without jurisdiction or wholly illegal, such Writ of Habeas Corpus can neither be asked for, nor can be granted. 49. This legal position has been further clarified and reaffirmed by the Hon'ble Apex Court in the recent decision of Manubhai R.P. Vs. State of Gujarat and Ors., (2013) 1 SCC 314. In this case, the complaint was lodged against the appellant-accused for the offences punishable under Sections 467, 468, 409 and 114 of IPC. He filed an application under Section 482 of the Code, challenging the registration of FIR and further investigation. On 16th July 2012, the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Apex Court referred to its earlier decision in Col. B. Ramachandra Rao Vs. State of Orissa, (1972) 3 SCC 256, wherein it was opined that, "a Writ of Habeas Corpus is not granted where a person is committed to jail custody by a competent Court by an order, which, prima facie, does not appear to be without jurisdiction or wholly illegal". (emphasis supplied) 52. Thereafter, in paragraph No.18, the Hon'ble Apex Court considered its Judgment in Madhu Limaye (supra). In paragraph No.19, the Hon'ble Apex Court has considered, in detail, the above referred Judgment in the case of Kanu Sanyal (supra) and, ultimately, in paragraph No.21, the Hon'ble Apex Court quoted with approval the principle laid down in the case of Kanu Sanyal (supra) that, "any infirmity in the detention of the Petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits." (emphasis supplied) 53. In paragraph No.22, the Hon'ble Apex Court also referred to the decision of the Constitution Bench in the case of Sanjay Dutt Vs. State, (1994) 5 SCC 410, wherein it was opined, in paragraph No.48, that; "48....... It is settled b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has not only to show that his arrest is ex-facie illegal, but he has further to show that the remand orders passed by the Magistrate are without application of mind, patently routine and passed completely mechanically. 57. Now, in this case, admittedly, the Petitioner is arrested on 14th March 2016, for the offence punishable under Section 4 r/w. Section 3 of PML Act. On 15th March 2016, the Petitioner was produced before the Special Court at Mumbai, established under the PML Act, and the Special Court had, vide its detailed order running into four pages, which is produced in the paper-book by the Petitioner at page Nos.172 to 175 (Exhibit "Q"), remanded the Petitioner to the custody of Enforcement Director till 17th March 2016. 58. May it be noted that the competency of the Special Court to remand the Petitioner, which is established under the provisions of PML Act, is not at all challenged. Thereafter also, from time to time, the said Special Court has extended the remand of the Petitioner to the judicial custody on 17th and 31st March 2016 by passing detail orders, giving all the reasons. 59. The perusal of the initial order of 15th March 2016, when the Petitioner was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence of money-laundering." The remand order, on the basis of submissions made by learned Senior Counsel for CBI and Petitioner, also records the reasons as to why remand of accused in the custody of Enforcement Directorate was necessary till 17th March 2016. 60. Having regard to the detailed Remand Report, in which various materials transpired in the course of investigation, was stated, saying that the proceeds of the crime to the tune of Rs. 750 Crores were yet to be identified and for that purpose, the custodial interrogation of the Petitioner was necessary to unearth the process of generation of illicit funds and for the purpose of the corroboration and confrontation of the Petitioner with the others involved in the case, the custodial interrogation of the Petitioner was necessary. It was further stated in the remand order that the Petitioner, having played a very crucial role in generation and subsequent monitoring of huge amounts of money and being prima facie guilty of the offence of money-laundering, as defined under Section 3 and punishable under Section 4 of PML Act, and further having regard that he being an influential person and may influence the other witne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand orders passed by the Special Court. 63. Therefore, as held in above referred authorities, for the sake of arguments, even assuming that the arrest of the Petitioner was illegal, once it is established that, at the stage of remand of the Petitioner, the Special Court has directed detention of the Petitioner after applying its mind to all the relevant factors, the orders of remand having thus cured the alleged Constitutional infirmities and such orders, prima facie, being not passed without jurisdiction or wholly illegal, then, as per the law laid down in the above cited authorities, the Writ for Habeas Corpus itself is not maintainable. 64. It is also pertinent to note that whatever grievances raised by the Petitioner in this Petition to challenge his arrest as illegal on the count of his arrest being not effected by the officer authorized under the PML Act; or he being not produced within twenty-four hours before the Court; or being not supplied with the grounds of arrest; or the offence being non-cognizable he could not have been arrested without permission of the Court, none of these contentions, as can be seen from the remand order of the Special Court, appear to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the arrest and in view thereof, the cognizance of their Petition seeking the Writ of Habeas Corpus was taken; particularly when the said assertion had remained uncontroverted in the 'Return' filed by the State. The perusal of paragraph No.10 of the order passed by the Hon'ble Supreme Court in the said matter reveals that the authorities wanted to invoke all kinds of provisions, like Sections 151, 107 and 117 of the Code, apart from Section 188 of IPC, and since no arrest could be effected for an offence under Section 188 of IPC by the Police Officers without proper orders, it was held that "these officers may have been naturally reluctant to comply with the mandatory requirements of Article 22(1) of the Constitution, by giving necessary information and that was the reason why the reasons of arrest were not told to Madhu Limaye and others". In that backdrop, it was held that this infirmity being not cured in view of the routine remand orders passed by the Magistrate mechanically, without applying his mind to all the relevant matters, the Petition for Habeas Corpus would lie. 67. As against it, in the present case, the Remand Report and the order of remand passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensured from the Original Record which this Court has, by order dated 9th April, 2014, called for from the Court of Additional Chief Judicial Magistrate, Dalsingsarai, District Samastipur, Bihar. Hence, the contention of the learned counsel for the petitioner that there was illegal detention without any case is incorrect. Therefore, the relief sought for by the petitioner cannot be granted. Even though there are several other issues raised in the Writ Petition, in view of the facts narrated above, there is no need for us to go into those issues. However, the petitioner is at liberty to make an application for his release in Criminal Case No. 129/13 pending before the Court of the learned Addl. Chief Judicial Magistrate, Dalsingsarai." (emphasis supplied) 71. Accordingly, it was held that the Petitioner cannot be entitled to the relief of the habeas corpus, which he was seeking, making it clear that the petitioner is at liberty to avail the remedies as available to him, in accordance with law. 72. In his supplementary judgment, Hon'ble the Chief Justice of India had also in paragraph (21) held that two things are evident from the record as follows; "21. Firstly, the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious as to probablise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the Court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously." (emphasis supplied) 75. Thus, it is clear that, even after finding that the Magistrate has acted rather mechanically in remanding the petitioner/accused to the judicial custody, and has taken the process in a cavalier fashion, that betrayed his insensitivity towards denial of personal liberty of a citizen, the Hon'ble Apex Court did not thought it fit to issue the writ of habeas corpus. It is also significant to note that the Hon'ble Apex Court has expressed its regrets towards the kind of apathy shown by the Magistrate but even then the Hon'ble Apex Court did not issue the writ of habeas corpus. It is also pertinent to note that though the Hon'ble Apex Court opined that the nature of offences alleged to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Court is expected to exercise some judicial restraint from passing any such order of releasing him on bail, when the appropriate remedy of applying for the regular bail or even bail on medical ground, if there is any change in circumstance, still being available to him. Interim Relief for Bail 78. Once it is held to be so, then, as regards the interim relief claimed by the Petitioner for his release on bail on the medical ground, also cannot be granted. We say so, not only because the Petition for Habeas Corpus is not maintainable, but, we say so, because already the Petitioner has, on this very medical ground, applied for his release on regular bail, under Section 439 of the Code. It is a matter of record that his application for bail filed before the Special Court on 3rd May 2016 on the medical ground came to be rejected by the Special Court vide its detail order on 13th May 2016, after considering all the contentions raised therein and being satisfied that the Petitioner is given proper medical treatment, which may be necessary. The copy of the said order is produced at Exhibit "AA", page Nos.352 to 362, of the paper-book. In the said application, it was brou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence punishable under Section 4 read with Section 3 of PML Act is a non-cognizable one and, hence, without permission of the competent Court, as required under Section 155(1) of the Code, the arrest could not have been effected. The second ground pertains to his arrest, being not effected by the Officer, duly authorized by the Central Government and, thirdly, the procedural safeguards for the arrest, as laid down under the PML Act and also under the Code, being not followed in the case. Provisions of PML Act 83. Now, in order to consider and appreciate various contentions raised on these three grounds, it would be necessary to first consider, in detail, the provisions of PML Act, along with its object and reasons and the purpose for which the said Act was brought on the Statute Book. 84. It needs to be stated that the PML Act was enacted on 17th January 2003 to prevent the offences of money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. In the 'Statement of Objects and Reasons' of the Act, it was specifically stated that; "It is being realized, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dding certain offences in Part 'A' and Part 'B' of the Schedule to the Act; to make provisions for the "offences with cross border implications" and to add new Part 'C' in the Schedule of this Act for such offences; to ensure that the Investigating Agency can attach any property, and to empower the Enforcement Directorate to search the premises immediately after the offence is registered etc. 88. As recently as in the year 2013, taking note of the fact that the problem of money-laundering has become a global menace and it has no longer restricted to the geopolitical boundaries of any country and also considering the fact that India has become member of the Financial Action Task Force, an Asia Pacific Group on Money- Laundering, thereby evidencing its commitment to the effective implementation and enforcement of internationally accepted standards against money-laundering and the financing of terrorism, the necessity was felt. To bring the Legislation of India relating to Anti-Money-Laundering at par with the international standards and to obviate some of the deficiencies in the Act that had been experienced by the implementing agency, the Act was amended wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words, "which may extend to ten years" had been substituted." 95. Chapter III of the PML Act provides for "Attachment, Adjudication and Confiscation of the Property, involved in Money- Laundering", to which we are not presently concerned. Similarly, Chapter IV of the PML Act, which deals with the "Obligations of Banking Companies, Financial Institutions and Intermediaries", is also not relevant for the purpose of this Petition. 96. Chapter V of the PML Act deals with the "summons, searches and seizures etc." In this Chapter, Section 19 is of relevance, as it deals with "power to arrest". It reads as follows :- "Section 19 - Power to arrest - (1) If the Director, Deputy Director, Assistant Director or any other officer authorized in this behalf by the Central Government by general or speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside India, duly authenticated by such authority or person and in such manner as may be prescribed, in the course of proceedings under this Act, the Special Court, the Appellate Tribunal or the Adjudicating Authority, as the case may be, shall- (a) presume, that the signature and every other part of such record which purports to be in the handwriting of any particular person or which the Court may reasonable assume to have been signed by, or to be in the handwriting of, any particular person, is in that person's handwriting; and in the case of a record executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested; (b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence. Section 24 - Burden of Proof - In any proceeding relating to proceeds of crime under this Act - (a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and (b) in the case of any other person the Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance and they are as follows :- "Section 48 - Authorities under the Act - There shall be the following classes of authorities for the purposes of this Act, namely:- (a) Director or Additional Director or Joint Director, (b) Deputy Director, (c) Assistant Director, and (d) Such other class of officers as may be appointed for the purposes of this Act. Section 49 - Appointment and powers of authorities and other officers - (1) The Central Government may appoint such persons as it thinks fit to be authorities for the purposes of this Act. (2) Without prejudice to the provisions of sub-section (1), the Central Government may authorize the Director or an Additional Director or a joint Director or a Deputy Director or an Assistant Director appointed under that sub-section to appoint other authorities below the rank of an Assistant Director. (3) Subject to such conditions and limitations as the Central Government may impose, an authority may exercise the powers and discharge the duties conferred or imposed on it under this Act." 100. Then comes Chapter IX of the PML Act, which deals with "Reciprocal Arrangement for Assistance in Certain Matters and Procedure for Attachme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect to the provisions of this Act vis-a-vis. the provisions of the Code or any other Act. Thus, the provisions of the Code can be looked into only and only when the provisions of this Act are silent as to the particular aspects, such as 'arrest' etc. and provided that they are not inconsistent with the provisions of this Act. Offences under PML Act whether non-cognizable ? 106. In the light of these provisions of PML Act, the very first contention raised by learned Senior Counsel for the Petitioner needs to be considered, which pertains to the question whether the offences under the PML Act are cognizable or non-cognizable. Learned Additional Solicitor General for Respondent Nos.1 to 3 has in this respect relied upon the head-note of Section 45 of the PML Act, which states that the "offences are cognizable and non-bailable"; whereas, learned Senior Counsel for the Petitioner has relied upon the amendment carried out to Section 45 of PML Act, in the year 2005 omitting clause (a) of sub-section (1) of Section 45, which provided that, "every offence punishable under the PML Act shall be cognizable". According to learned Senior Counsel for the Petitioner, in view of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) 108. As against it, learned Additional Solicitor General has placed reliance on the decision of the Hon'ble Apex Court in the case of Eastern Coalfields Ltd. vs. Sanjay Transport Agency and anr., (2009) 7 SCC 345, wherein, while dealing with the interpretation of the provisions of Section 2(1)(b) and Section 11(6) of Arbitration and Conciliation Act, 1996, the Hon'ble Apex Court was pleased to observe in paragraph (6) as follows; "It is well settled rule of interpretation that the section heading or marginal note can be relied upon to clear any doubt or ambiguity in the interpretation of any provision and to discern the legislative intent. The section heading constitutes an important part of the Act itself, and may be read not only as explaining the provisions of the section, but it also affords a better key to the constructions of the provisions of the section which follows than might be afforded by a mere preamble." (emphasis supplied) 109. Therefore, as held in both these decisions, head-note is important to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent. Further as held therein, the Section-heading const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " (emphasis supplied) 112. Thus, bare perusal of the statement made by the then Finance Minister, while introducing this amendment in Section 45(1) of the Act, makes it clear that, as it was apprehended that if the offence is cognizable, then any Police Officer in India can arrest an offender without warrant; whereas, Section 19 of the PML Act authorizes only certain authorities, like Director or a Deputy Director or an Assistant Director or any other officer authorized, to arrest an offender, there was a conflict between the two provisions and in view thereof, it was felt that it was necessary to remove such conflict. This necessity was also felt on the ground, that under Section 45(1) (b) of the PML Act, the Special Court can take cognizance of an offence punishable under Section 4 thereof, only upon a complaint made in writing by the Director or any other officer authorized by the Central Government. Hence, it was apprehended as to "what would happen to an arrest made by the Police Officer in the case of a cognizable offence?; which is the Court that will try such offence?" Hence, in view of this clear inconsistency, it was thought fit to enable, only a Director or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officer has no authority to arrest without warrant." 117. In view of this definition of "cognizable offence", it is clear that if the offence falls under the First Schedule of the Code or under any other law for the time being in force, the Police Officer may arrest without warrant. The 'First Schedule' of the Code specifically provides classification of the offences, which are "cognizable" or "non-cognizable"; bailable or non-bailable and triable by which Court according to the punishment, which is provided for the said offences. Under Part II of the First Schedule, "Classification of Offences against Other Laws" provides that, "offences punishable with imprisonment for more than three years or upwards would be cognizable and nonbailable". 118. In the instant case, the offence under Section 4 r/w. Section 3 of the PML Act, as reproduced above, is punishable with imprisonment for more than three years and which may extend upto seven years or even upto ten years, as the case may be. Therefore, in view of Part II of the First Schedule of the Code, the said offence becomes cognizable. Therefore, merely because sub-clause (a) of subsection (1) of Section 45 of the PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure prescribed, by any other law for the time being in force." 120. Therefore, accepting that sub-clause (a) of sub-section (1) of Section 45 of PML Act is deleted and as a result, now the provisions of PML Act are silent as to whether the offence is cognizable or noncognizable, the recourse has to be taken to the provisions of Section 65 of the PML Act and Section 4(2) and 5 of the Code to hold that, in view of Part II of 'First Schedule' of the Code, the offence under this Act being punishable with imprisonment for more than three years and extending upto seven years, the offence has become cognizable. 121. As a matter of fact, in our considered opinion, there is also no need to enter into this aspect whether the offences under this Act are cognizable or non-cognizable, because Section 19 of the PML Act is very much clear. The said provision clearly confers power on the authorized officer to arrest any person, if the authority has reason to believe, on the basis of the material in its possession, that a person has been guilty of an offence punishable under the said Act. Thus, it is clear that, the moment, the authority under the Act arrives at such reason to believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r non-cognizable. 123. It is obviate that if the intention of the Legislature was to restrict such power of arrest of even the authorized officer in respect of the offence punishable under this Act, there was no difficulty for the Legislature to do so when the Amendment Act of 2005 was introduced; even before the Act of 2002 was notified. The very fact that the Legislature has not done so and has also not intended to do so, as can be seen from the statement made by the then Minister of Finance in the Parliament, makes it necessary to infer that Legislature did not intend to curb the power of arrest, which was given to the authority under Section 19 of the PML Act; whether such offence was cognizable or non-cognizable. In such situation, in our considered opinion, this argument relating to whether the offence under the PML Act is cognizable or non-cognizable becomes merely of an academic interest. Compliance with provisions of the Code of Criminal Procedure 124. In our considered view, for the same reason the question, 'whether the arresting authority was required to follow the procedure laid down in Section 155(1) of the Code', becomes redundant. 125. Section 155(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Their Powers to Investigate", thereby meaning that this Chapter concerns to the restrictions on the powers of Police in respect of the information received by them about commission of cognizable or non-cognizable offence and, depending thereon, arrest of the concerned accused. The provisions of this Chapter of the Code can be applied to the offences punishable under the provisions of PML Act, only if the provisions in PML Act are silent as regards the investigation and arrest of person, who has been found to be guilty of committing the offences punishable under the PML Act. 128. This is for the reason that of the PML Act gives overriding effect to the provisions of PML Act. Section 71 of the PML Act clearly lays down that, "the provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force". Section 65 of PML Act further makes the position clear by stating that, "the provisions of the Code shall apply, only if they are not inconsistent with the provisions of PML Act, even as regards arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be read even in respect of these offences, then, it follows that Section 19 of PML Act would be rendered nugatory and that cannot be the intention of the Legislature. The Court cannot make any special provision in the Act as nugatory or infructuous by giving the interpretation which is not warranted by the Legislature. As a matter of fact, the endeavour of the Court should always be to ensure that the provisions enacted by the Legislature are not rendered nugatory in any way. 132. It is pertinent to note that Section 19 of PML Act, which does not contemplate the compliance with the procedure required to be followed by the Police Officer under Chapter XII of the Code, is not challenged in this Petition, as being ultra vires. In the absence of such challenge raised and in view of the clear provision laid down in Section 19 of PML Act, it cannot be accepted that the officer authorized under the PML Act should have followed the procedure laid down in Chapter XII of the Code, which is meant for Police Officers, to be followed in respect of the informations received by them. 133. Section 19(1) of the PML Act, at the cost of repetition, it has to be stated that, does not contemplat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owed in the instant case, it can hardly be accepted that the arrest or detention of the Petitioner is, in any way, illegal or without jurisdiction, so as to invoke the extra-ordinary writ remedy and that too of a habeas corpus; especially when the writ of habeas corpus is to lie whenever there is reason to believe that the person is in illegal detention; whereas, in the instant case, the Petitioner is arrested and detained for commission of specific offences. His detention is also validated by the order passed by the Special Court and as such, his detention cannot be called as illegal, far remain null and void, so as, for the Constitutional Court to exercise its extra-ordinary powers under writ jurisdiction; especially, when the Petitioner has already approached the competent Special Court and this Court also, for his release on bail and the said relief having been rejected with valid reasons by both the Courts. 137. As regards the reliance placed by learned Senior Counsel for the Petitioner on the landmark decision of the Hon'ble Apex Court in the case of Lalita Kumari (supra), it is also pertinent to note that the important issue, which was raised for consideration in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meaning of that Code." 140. In view thereof, it was held that, this "non-obstanti clause", with which the Section begins, in very categorical terms, makes it clear that "notwithstanding anything" contained in the Code, offences under Section 9 of Central Excise Act, 1944 would be deemed to be non-cognizable within the meaning of the Code. As against it, in the case of PML Act there is no such section containing positive assertion that the offences under the Act are noncognizable, notwithstanding anything contained in the Code. There is also no judicial pronouncement to that effect from the Hon'ble Apex Court. As pointed out by learned Senior Counsel for the Petitioner that issue is pending for consideration before the Hon'ble Apex Court. 141. The Hon'ble Apex Court has in this judgment of Omprakash (supra), then also dealt with Sections 13, 18, 19, 20 and 21 of the said Central Excise Act, 1944, which read follows :- "13. Power to Arrest - (1) Any Central Excise Officer not below the rank of Inspector of Central Excise may, with the prior approval of the Commissioner of Central Excise may, arrest any person whom he has reason to believe to be liable to punishment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior." 142. In the light of all these relevant provisions of Section 9A making the offences non-cognizable, notwithstanding anything contained in the Code and Section 18 making it mandatory, as use of the word "shall" denote, that all the arrests made under those Act's shall be carried out in accordance with the provisions of the Code and Section 19 of the said Act providing that the person arrested shall be forwarded to the Officer-in-Charge of nearest Police Station, it was held by the Hon'ble Apex Court that; as all the searches and arrests made under the said Act has to be carried out in accordance with the provisions of the Code, the provision of Section 155 of the Code, which deals with information relating to non-cognizable offences also becomes applicable and hence it was held that in respect of the information relating to non-cognizable offences, in view of Section 155(1) of the Code, investigation cannot be commenced or a person cannot be arrested without a warrant for such arrest. In the light thereof, the provisions of Section 41 of the Code, wherein the Police Officer cannot arrest without an order from the Magistrate and without a warrant, were dealt with. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him, in this case, as these provisions of the Code were not followed in effecting the arrest of the Petitioner, arrest of the Petitioner is illegal. 145. However, in our considered opinion, this line of argument is misconceived as in the PML Act, there is no such provision, like Section 18 of the Central Excise Act, 1944, laying down that arrest under PML Act shall be carried out in accordance with the provisions of the Code. The conspicuous absence of such provision like Section 18 of the Central Excise Act, 1944 in PML Act, is a very relevant aspect for deciding the issue, 'whether the authorities under the PML Act, like the authorities under the Customs Act, 1962 and Central Excise Act, 1944, are also bound by the provisions of the Code relating to arrest and investigation?' 146. In our considered opinion, therefore, once it is held that such provision like Section 18 of the Central Excise Act, 1944, is not appearing and is conspicuous by its absence in PML Act, then, one has to go by the provisions of the PML Act only, as Section 71 thereof is giving overriding effect to the said provisions. Section 19 of the PML Act, as stated above, does not contemplate at all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not pertain to the 'power of arrest', but to the provisions of Section 167 of the Code, which pertain to the custodial detention. It is also pertinent to note that provisions of the Code were resorted to in this judgment in the aid of implementation of the provisions of the Customs Act and not to create hindrance in implementation of the said Act. It would be necessary in this respect to refer to the observations made by the Hon'ble Apex Court in paragraph No.23 of the said Judgment. It was observed that; "23. Keeping in view the cardinal principle of law that every law is designed to further the ends of justice but not to frustrate on the mere technicalities, we shall deal with all those challenges in the background of the principles of statutory interpretations and of the purpose and the spirit of the concerned Acts as gathered from their intendment." (emphasis supplied) 149. Therefore, in our considered opinion, as this Judgment also lays down that the provisions of law are to be interpreted to further the ends of justice and not to be frustrated on the mere technicalities, the provisions of PML Act are also required to be interpreted with that objective in view a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and unlimited powers exercisable up to unfathomable cosmos. Any recognition of such power will be tantamount to recognition of 'Divine Power' which no authority on earth can enjoy." 151. There can hardly be any dispute or two opinions about the legal proposition laid down in this authority that that the police should exercise the investigatory powers by following statutory provisions so as to not cause any serious prejudice to the personal liberty and also property of a citizen. However, in the instant case, the perusal of the remand orders does not reflect that there was breach of any statutory provisions, so as to cause any serious prejudice to the liberty of the Petitioner. 152. In this respect, reliance placed by learned Senior Counsel for the Petitioner on the decision of Punjab and Haryana High Court, in the case of Gorav Kathuria vs. Union of India and ors. In Criminal W.P.No.595 of 2016 is also misplaced. The reason for the same is that the said decision pertains to the petition which has challenged the vires of firstly, Section 2(y)(ii) of PML Act as amended vide Section 45(ii) of the Finance Act, 2015, enhancing the monetary threshold for the offences specifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to regular bail, is of absolutely no help to the Petitioner. Even accepting that the SLP preferred against the said judgment by the Petitioner therein, challenging it on the count that he was refused locus-standi to file such private complaint, was dismissed by the Hon'ble Apex Court in Criminal Appeal No.737 of 2016 vide its order dated 12th August, 2016, despite the Certificate granted by the Punjab and Haryana High Court, in our considered opinion, as this judgment and the issues raised therein were totally different and the provisions of PML Act and other Acts were considered in the light of the issues raised therein, this judgment cannot be of much help for the purpose of deciding the issues raised in this petition, in which, the Petitioner is claiming his release under the writ of habeas corpus and not under regular bail under Section 45 of PML Act. 155. Even as regards the decision of Gautam Kundu vs. Manoj Kumar, Criminal Appeal No.1706 of 2015, which is also considered in the case of Gorav Kathuria (supra), in our considered opinion the said judgment also pertains to the challenge raised by the Appellant therein to the rejection of his application for bail unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed by some of the accused, however, the complaint did not show any material evidence, direct or circumstantial against the Petitioner. It was found that "so far as the Petitioner therein was concerned, there was no recovery or discovery from or at the instance of the Petitioner. Barring statements, there was no prima facie material evidence against the Petitioner of any money laundering, despite the fact that he was in custody for the last about 11 months". It was also noticed that "the uncle of the Petitioner, who was alleged to have much higher role and stated to be the main accused was on bail. Not only that, out of 89 accused persons and entities, all were on bail, except eight or nine including the Petitioner". Hence, it was held that, "if about 80 out of 89 accused are ordered to join investigation under protection of Court order, the Petitioner who had already undergone about 11 months is entitled to interim relief as prayed". Needless to state that the facts of the present case are totally different, as in this case the Petitioner, who is the then Ex-Minister in the State of Maharashtra is alleged to be the master-mind and the kingpin in the moneylaundering of multi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any prior sanction/order of Magistrate, the investigation being conducted by the said authorities, is not justified. The Division Bench of the Punjab and Haryana High Court was pleased to reject these contentions and dismissed the petition by its final order. Hence this judgment being a final authoritative pronouncement can be of more help. In this Judgment of Division Bench of the Punjab and Haryana High Court, after considering all the relevant case laws, which are cited by learned Senior Counsel for the Petitioner in this case also, Division Bench found no substance or reason to hold that offences under PML Act are non-cognizable and the Authorities under the PML Act have to follow the procedure laid down in the Code in respect of the arrest under Section 19 of the Act. 161. In this judgment, the judgments of the Hon'ble Apex Court in the case of Om Prakash and another vs. Union of India (supra), Directorate of Enforcement vs. Deepak Mahajan (supra), Lalita Kumari vs. Goverment of Utter Pradesh (supra) were considered in detail and it was held the right to investigate under the Act is very much part of the scheme of the Act. Hence the argument that the offence is non cogniz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the only notification, which is issued by the Central Government so far, is dated 1st July 2005 and it confers exclusive powers on the Director of Enforcement under FEMA, holding office immediately before the said date. The relevant notification is produced by the Petitioner at Exhibit-F, page No.129 of the paper-book. It can be reproduced as follows; The Gazette of India Notification New Delhi, the 1st July, 2005 G.S.R.411(E).-In exercise of the powers conferred 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 16, section 17, section 18, section 19, section 20, section 21, subsection (1) of section 26, section 45, section 50, section 57, section 60, section 62 and section 63 of the said Act and the said Director shall also concurrently exercise powers conferred by sub-section (3), sub-section (4) and sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities". 167. In this judgment the provisions of Section 48 of the PML Act, which defines "Authorities under the Act" and Section 49 of the PML Act, which deal with "Appointment and Powers of Authorities under the Act" are elaborately dealt with. The provisions of Section 50 of the PML Act, which deals with the "Powers of Authorities Regarding Summons, Production of Documents and to Give Evidence etc." and Section 51 relating to "Jurisdiction of Authorities", r/w. Section 52, about the "Powers of the Central Government to Issue Directions", are also considered and thereafter it was held that the Ministry of Finance has appointed the Enforcement Director, as appointed under sub-section (2) of Section 36 of FEMA, as 'Assistant Director' for the purpose of PML Act and such order is issued in exercise of powers conferred under sub-section (1) of Section 49 of PML Act. 168. In our considered view also having regard to the above notification which is in force and subsequent notifications issued on the same lines by the Ministry of Finance, Department of Revenue, Central Government, and having regard to the definition of "Assistant Director", as contained in Section 2(1)(c) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector" or "any other officer" and subsequent words after the 'comma', "as authorized in this behalf by the Central Government", make it clear that such a Director, Deputy Director, Assistant Director or any other officer are also required to be authorized in this behalf by the Central Government. According to learned Senior Counsel for the Petitioner, no such authorization is issued in the instant case. It is submitted that this aspect being not properly considered in above said judgment, it needs to be considered in this case. 172. However, perusal of the decision of the learned Judge of this Court, [Coram : R.C. Chavan, J. in Criminal Bail Application No.71 of 2013 decided on 04.02.2013], clearly reveals that this aspect was definitely considered in paragraph Nos.13 and 14 of the said Judgment, which read as under :- "13. I have considered these arguments. First the rules which have been relied on 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the provisions of Section 19 of PML Act and hence appropriate interpretation would be, as far as Directors, Deputy Directors and Assistant Directors are concerned, no such authorization of the Central Government is required; whereas, in respect of other officers, such authorization may be necessary. 174. As to non-consideration of sub-section 3 of Section 49 of PML Act in the above two authorities, even bare perusal of sub-section 3 of Section 49 of PML Act makes it clear that the authority may exercise the powers and discharge duties conferred or imposed on it under this Act, subject to such conditions and limitations, as the Central Government may impose. Therefore, only if some conditions and limitations are imposed by Central Government, the power of arrest, which is already vested in these authorities can be restricted. In the instant case, not a single notification issued u/s.49 (3) of the Act is produced to show that any conditions and limitations have been imposed by the Central Government on the authorities established under the PML Act in exercise of their powers and discharge of duties conferred or imposed on it under this Act. In our considered view, therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y relevant clauses of Article 22 of the Constitution for the purpose of deciding this Petition are clauses (1) and (2). So far as clause No.(3) is concerned, it makes it clear that clause Nos.(1) and (2) of Article 22 of the Constitution do not apply to any person, who, for the time being, is an enemy alien or to any person, who is arrested or detained under any law providing for preventive detention. Subsequent clauses, namely, (4), (5), (6) and (7) deal with the arrest of the person under preventive detention. As regards clause Nos.(1) and (2) of Article 22 of the Constitution, they lay down the following safeguards :- "(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 19 makes it clear that such grounds are to be provided to the arrested person at the time of arrest or immediately after the arrest. Reliance is also placed on the Rules framed under the Money- Laundering Act, 2002, particularly, the Prevention of Money- Laundering (the Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person alongwith the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005. It is submitted that as per Rule 6, it is provided that the Arresting Officer, while exercising powers under Sub-Section (1) of Section 19 of the Act shall, sign the Arrest Order in Form III appended to these rules. The Form III, read as follows; FORM III (See rule 6) ARREST ORDER Whereas, I........................................, Director/Deputy Director/Assistant Director/Officer authorised in this behalf by the Central Government, have reason to believe that.........................................................resident of..................... (name of the person arrested) has been guilty of an offence punishable under the provisions of the Prevention of Money-Laundering Act, 2002 (15 of 2003). Now, therefore, in exercise of the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctorate Directorate of Enforcement, Mumbai To Shri Chhagan Chandrakant Bhujbal, 8th floor, Solitaire, Convent Avenue Road, S.V. Road, Santacruz West, Mumbai. 187. Thus, perusal of the Arrest Order makes it clear that it is in the exact Form No.III, as given in the Rules referred above and therefore, at this stage it cannot be said that there was noncompliance of any mandatory procedural safeguard. 188. The perusal of the Arrest Order also reveals that the Petitioner has been informed of the grounds for such arrest. The Arrest Order bears the signature of the Petitioner in acknowledgment of having received the same on the same night at about 22.05 hours. Therefore, unless something contrary is produced on record, it has to be presumed and held that the Petitioner was informed of the grounds of arrest and in acknowledgment thereof he has signed on the Arrest Order. If, no such grounds were communicated to him, then, it is clear that he would have made endorsement to the effect that, he has not received the grounds of arrest. After-all the Petitioner is not some illiterate person but an educated person, in the sense that he was the Minister in the earlier State Government and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Arrest Order, which bears his signature, it goes without saying that the Petitioner, who was ably represented by his Senior Counsel at the time of his first remand and even for subsequent remands, would not have failed to raise this grievance, especially when the Special Court has even taken care to ask the Petitioner, whether he has any complaint. Thus, the Petitioner was given ample opportunity to raise the grievance, if he was really not informed of the grounds of his arrest. 193. It is also significant to note that the Petitioner has not raised this grievance about the grounds of arrest being not informed to him at the time of his arrest, not only when he was first produced for remand before the Magistrate but even thereafter also from time to time when he was remanded to Judicial Custody after the expiry of every 15 days. He has also not raised this grievance in his bail application(s) filed before the Special Court and this Court. If, now after the rejection of those bail applications and after the lapse of more that eight months, he is raising this grievance, then it is obvious that it is clearly an after thought, to advance his case for writ of habeas corpus. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and thereafter issued the process. Thus, there was sufficient material before the arresting authority for the reason to believe that the Petitioner is guilty of the offence punishable under Section 3 r/w. Section 4 of the PML Act. If for such a serious offence in view of this prima facie material, Respondent No.2 had reason to believe that the Petitioner is guilty of the offence of moneylaundering and hence Respondent No.2 arrests the Petitioner and the Special Court remands him to Custody, then neither the arrest nor the detention of the Petitioner can be called as illegal to issue Writ of Habeas Corpus. 197. As observed by the Apex Court in the case of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation, (2013) 7 SCC 439, the economic offences, having deep rooted conspiracy and involving huge loss of public funds, need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 198. In the case of Union of India Vs. Hasan Ali Khan, (2011) 10 SCC 235, the Hon'ble Apex Court was further pleased to hold that, 'what will be the burden of proof when ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
