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TMI Blog2022 (6) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... rabad under Sections 120B r/w/ 420, 467, 468, 471 of the Indian Penal Code, 1860 and Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. In the said case, the allegations against the Petitioner are that he forged various letters in the name of Punjab National Bank and obtained illegal delivery of metal gold from SBI, Hyderabad and caused a wrongful loss of Rs. 62.02 Crore to the SBI, Hyderabad. A charge sheet bearing C.C. No. 40 of 2018 was filed on the file of XXI Additional Chief Metropolitan Magistrate - cum - Spl. JMFC for Trial of CBI Cases at Hyderabad. ii) Based on the above complaint and considering it as a schedule offence, the Respondent herein registered ECIR/HZO/08/2012 under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (hereinafter 'PMLA'). The Respondent commenced the investigation and the Petitioner and his family members were summoned under Section 50 of the PMLA. According to the Respondent, summons were issued on 22.04.2014 to appear on 12.05.2014, on 17.11.2014 to appear on 26.11.2014, 31.05.2016 to appear on 08.06.2016 and on 08.06.2016 to appear on 15.06.2016. According, to the Petitioner he had duly replied to all the sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m order directing the Respondent herein not to issue any fresh summons till they file a counter. viii) On 29.11.2021, the Petitioner herein was arrested by ED, Kolkata in relation to ECIR/KLZO/-II/01/2021. The Petitioner was remanded to judicial custody vide order dated 13.12.2021 till 23.12.2021. The Petitioner was lodged in Presidency Correctional Home, Kolkata. ix) While the Petitioner was in judicial custody in Kolkata, the Respondent herein filed a petition under Section 267 of the Cr.P.C. r/w Section 50 of the PMLA seeking issuance of P.T. warrants and a direction to Superintendent, Presidency Correctional Home, Kolkata so as to produce the Petitioner before the Metropolitan Sessions Judge, Hyderabad and to continue the investigation in ECIR/HZO/08/2012. The copy of the petition under Section 267 of the Cr.P.C. r/w Section 50 of the PMLA was also served on the Petitioner through the Superintendent, Presidency Correctional Home, Kolkata and in the said petition, the Petitioner was informed that he has been arrested under Section 19 of the PMLA. x) On 03.01.2022, the petition seeking P.T. warrant was allowed in relation to ECIR/HZO/08/2012 and the Superintendent, Presiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) days from 17.02.2022 to 20.02.2022. Further custody to the Respondent department was granted vide order dated 21.02.2022 from 22.02.2022 to 25.02.2022. xvi) On 26.02.2022, the Respondent herein filed a memo seeking extension of judicial custody in ECIR/HZO/08/2012. The court on the same day extended the judicial custody for a further period of fourteen (14) days. xvii) Therefore, the present criminal petition is filed seeking to quash the order dated 11.02.2022 and all subsequent orders remanding the Petitioner to judicial custody. 4. Contentions of the Petitioner i) The impugned order dated 11.02.2022 is in complete disregard to the order dated 09.02.2022 passed by this Court in Crl.P.No. 1130 of 2022 and was passed in a casual and mechanical manner. Further, the trial court failed to comply with the order dated 09.02.2022. ii) The trial court ought to have considered that the Respondent's application seeking judicial custody is vexatious, misconceived and was filed solely to harass the Petitioner. The said application suppressed the filing of W.P. No. 9926 of 2021 seeking to quash the proceedings in ECIR/HZO/08/2012. iii) The order passed by this Court in Crl.P.No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Bar Association v. Union of India (2016) 9 SCC 473. x) The impugned order dated 11.02.2022 amounts to abuse of process and is aimed at circumventing the orders passed in W.P. No. 9926 of 2021 and Crl.P.No. 1130 of 2022. xi) Therefore, the impugned order is liable to be quashed. 5. Contentions of the Respondent (Enforcement Directorate) i) The Petitioner cannot claim any benefit under Section 160 of the Cr.P.C. to contend that summons could not have been issued to him. PMLA is a complete code in itself and is a special legislation. Power to issue summons to any person under Section 50 of the PMLA will override the general power conferred on the police under Section 160 of the Cr.P.C. Therefore, Section 160 of the Cr.P.C. will not apply to the proceedings under the PMLA. Reliance was placed on Vakamulla Chandrasekhar v. Enforcement Directorate 2017 SCC OnLine Del. 12810 and Kamma Srinivas Rao (Supra). ii) The Petitioner fraudulently obtained the delivery of gold from banks like State Bank of India and Punjab National Bank by forging documents. The obtained gold was sold in the open market which resulted in the Petitioner earning huge profits as payment of custom duty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Petitioner through Superintendent, Presidency Correctional Home, Kolkata on 23.12.2021. Therefore, the Petitioner was aware of the grounds of his arrest and Section 19 of the PMLA was complied with. x) Grant of bail in schedule offences will not preclude the investigating agency to proceed in accordance with law. xi) The Petitioner is an accused in various crimes and is wanted by multiple agencies like the CBI, ED Kolkata, ED Hyderabad, DRI Kolkata, DRI Hyderabad and the COFEPOSA authorities. Therefore, interference with the investigation at this stage will cause grave injustice to the Respondent. 6. Findings of the Court i) It is clear from the facts of the case that the order dated 11.02.2022 remanding the Petitioner and the subsequent orders extending the remand are under challenge. Therefore, this Court has to decide whether the trial court was justified in remanding the Petitioner when he was already in custody in relation to another offence in ECIR/KLZO/-II/01/2021 in the Presidency Correctional Home, Kolkata. ii) Section 267 provides a procedure to deal with a person who is alleged to have committed various offences. Section 267 of the Cr.P.C. contemplates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he production is sought, but not by any other Magistrate. It is also to be noted that production on P.T. warrant is sought from the prison through the Superintendent of Jail and not through any other mode. 12. The question which would then fall for consideration, is, whether by effecting such formal arrest, the accused would be in the custody of the police, who executed the formal arrest. Though the words "arrest" and 'custody' looks synonymous, a Full Bench of Madras High Court in Roshan Beevi v. Joint Secretary, Government of T.N. (2) 1893 MLW (crl) 289 Mad, held that 'custody; and 'arrest' are not synonymous terms. The Full Bench held that though custody may amount to arrest in certain circumstances, but not in all circumstances. The findings given in the said judgment came to be tested before the Apex Court in the case of Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440. While confirming the stand taken by the Full Bench in Roshan Beevi's case (2 supra), the Apex Court held as under: "Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when remanded on his surrender before the Court and submits to its jurisdiction. However, his physical control or at least physical presence, coupled with submission to the jurisdiction and orders of Court, is a sine qua non. Be it on the production by the investigating agency, or on his own before the court. If the Court is of the opinion that he has committed cognizable offence and that his remand is warranted, it can direct him to be remanded to judicial custody under Section 167 Cr.P.C., though not arrested by any investigating agency. That being the position, the argument of the learned counsel for the petitioner that arrest is a pre-condition for remand may not be correct. But however, the power of remand is to be exercised under Section 167 Cr.P.C. only and not under Section 267 Cr.P.C. As held by us earlier, remand of an accused under Section 267 Cr.P.C. it self may not be correct, but remanding an accused by an order of court is a prerequisite for the purpose of making an application for seeking bail. XXX 18. In the instant case, the grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on P.T. wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Section 267 of the Cr.P.C. has to show that such a person is formally arrested. The details of the formal arrest have to be stated in the petition filed under Section 167 of the Cr.P.C. The court on satisfaction that the person has been formally arrested and his custody is required may remand the accused under Section 167 of the Cr.P.C. vi) In the present case, the Petitioner was lodged in the Presidency Correctional Home, Kolkata in relation to the offences registered pursuant to ECIR/KLZO/-II/01/2021. The Respondent sought his production before the lower court under Section 267 of the Cr.P.C. and an application was filed under Section 167 seeking judicial and police custody. The Petitioner, inter alia, contended that the impugned order dated 11.02.2022 is illegal as Section 19 of the PMLA was not complied with. vii) Section 19 of the PMLA deals with the power of arrest and the procedure of arrest. This Court in Kamma Srinivas Rao (Supra) explained the scope of Section 19 of the PMLA and the requirements to be satisfied before arresting any person. The relevant paragraphs are extracted below: "24. Section 41 of the Cr.P.C. provides that police officers have the power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rements of Section 19 of the PMLA. This Court has perused the petition which was served upon the Petitioner on 23.12.2021. The said petition is detailed and clearly explains the Respondent authority's reasons to believe that the Petitioner is guilty of an offence under PMLA and the said reasons are also recorded in writing. The said petition also indicates that the authority had material in its possession based on which reasons to believe were formed. x) Further, the grounds of the arrest were stated and the Petitioner was informed that he is an accused in ECIR/HZO/08/2012 and was arrested. The Respondent authority contended that the arrest order along with the material in its possession was forwarded to the Adjudicating Authority. The said fact is not disputed by the Petitioner. Therefore, according to this Court, Section 19 of the PMLA was complied with. xi) By informing the grounds of arrest to the Petitioner, the Respondent authority had made a formal arrest. The custody of the Petitioner could only be sought after he was produced pursuant to the P.T. warrant under Section 267 of the Cr.P.C. Once he was produced, the trial court considered the fact that he was formally arre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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