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TMI Blog2023 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... rst Information Report registered being Hare Street Police Station Case No.290/2022 dated 14.10.2022 under Sections 120B/420/467/ 471 of the Indian Penal Code on the basis of a complaint lodged by Canara Bank officials. Learned advocate appearing for the petitioner draws the attention of the Court to the application under Section 267 of the Code of Criminal Procedure filed by the petitioner against the opposite parties namely, Shailesh Kumar Pandey and Prasenjit Das. In respect of opposite party no.1 Shailesh Kumar Pandey paragraphs 10 and 11 of the application under Section 267 of Cr.P.C. are relevant which are set out as follows:- "10. That, during investigation, public money amounting to more than Rs.108 crore has been credited into the account of TPG Techno Service bearing account no.3306201002020 maintained with Canara Bank. Further from the said account, huge amount of Rs.90,00,000/- have been transferred in different trenches to the account of Shailesh Pandey, which is evident from the bank account statement of TPG Techno Service and a gist of the same is annexed as Annexure - B." 11. That, based on investigation conducted so far, it has been established that the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opposite parties are required on the following grounds:- (a) To ascertain the trail of proceeds of crime involved in the present case; (b) To ascertain further beneficiaries of the aforesaid proceeds of crime involved in the present case; (c) To ascertain the role of the other alleged/suspected persons involved in the above said laundering of proceeds of crime; (d) To identify the properties (immovable/movable) acquired from proceeds of crime by the accused persons. Records reflect that on 18.01.2023 the Learned Special Court was pleased to issue production warrant directing the Superintendent, Presidency Correctional Home, Alipore to produce the accused/opposite parties physically on 21.01.2023. Learned advocate appearing for the Enforcement Directorate submits that on 21.01.2023 when the accused persons were produced before the Learned Special Court, the petitioner filed application under Section 167(2) of the Code of Criminal Procedure read with Section 2(1)(na) and Section 65 of PML Act, 2002 thereby praying for 15 days custody on the grounds which were earlier canvassed before the same Court. Learned advocate criticized the order of the Learned Special Judge passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Orissa High Court paragraph 24 of the said judgment so relied upon is set out as follows:- "24. It is clear that the meaning of the word 'custody' has to be taken with reference to the context in which it is used. The question as to what would constitute arrest and custody has been the subject matter of decisions of different High Courts. This issue was grappled with by the Full Court of the High Court of Madras in the case of Roshan Beevi v. Joint Secretary to Government of Tamil Nadu reported in 1983 SCC OnLine Mad 163, wherein the Hon'ble High Court was pleased to observe as follows: "16. From the various definitions which we have extracted above, it is clear that the word 'arrest', when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue the order of attachment under PMLA, was of the opinion that the record regarding banks and its officials who may be involved, is not on record. Therefore, for lack of identity of the source of collected money, it could not be reasonably believed by the Deputy Director (ED) that the unaccounted money is connected with the commission of offence under PMLA. Simultaneously, the letter of the IT Department dated 16-5-2019 and the details as mentioned, makes it clear that for the currency seized, the tax is already paid, therefore, it is not the quantum earned and used for money laundering. In our opinion, even in cases of PMLA, the Court cannot proceed on the basis of preponderance of probabilities. On perusal of the Statement of Objects and Reasons specified in PMLA, it is the stringent law brought by Parliament to check money laundering. Thus, the allegation must be proved beyond reasonable doubt in the Court. Even otherwise, it is incumbent upon the Court to look into the allegation and the material collected in support thereto and to find out whether the prima facie offence is made out. Unless the allegations are substantiated by the authorities and proved against a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. It was incumbent upon the learned Special Court to take into account paragraphs 323, 324 of the said judgment which are set out as follows: "323. In the context of this provision, the challenge is that in absence of any formal complaint being filed, arrest under Section 19 is being made by the authorised officers. Whereas, the purport of Section 167 of the 1973 Code would suggest that the person can be arrested by the jurisdictional police without warrant under Section 41 of the 1973 Code only upon registration of a complaint under Section 154 of the 1973 Code in connection with cognizable offence or pursuant to the order of the Court. Even, in case of arrest pursuant to the order of the Court, a formal complaint against such person accusing him of being involved in commission of an offence is essential. Moreover, the person produced before the Court would be at a loss to know the grounds for arrest unless a formal FIR or complaint is filed accusing him about his involvement in the commission of an offence. The provision if interpreted to permit the authorised officer to arrest someone being involved in the commission of offence of money-laundering without a formal complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct situation so warrant. It is not as if after every inquiry prosecution is launched against all persons found to be involved in the commission of offence of money-laundering. It is also not unusual to provide for arrest of a person during such inquiry before filing of a complaint for indulging in alleged criminal activity. The respondent has rightly adverted to somewhat similar provisions in other legislations, such as Section 35 of FERA and Section 102 of Customs Act including the decisions of this Court upholding such power of arrest at the inquiry stage bestowed in the Authorities in the respective legislations. In Romesh Chandra Mehta532, the Constitution Bench of this Court enunciated that Section 104 of the Customs Act confers power to arrest upon the Custom Officer if he has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135 of that Act. Again, in the case of Padam Narain Aggarwal533, while dealing with the provisions of the Customs Act, it noted that the term "arrest" has neither been defined in the 1973 Code nor in the Penal Code, 1860 nor in any other enactment dealing with offences. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Choudhary (supra), I hold that the foundation, finding and conclusion of the order dated 21.01.2023 passed by the Learned Special Judge is bad in law and the same as such is set aside. Accordingly, CRR 263 of 2023 is allowed. Mr. Edulji, learned advocate appearing for the ED on 08.02.2023 pointed out that when the revisional application was filed before this Court the accused/opposite parties were in custody in connection with Hare Street Police Station Case No.290/2022 dated 14.10.2022, although it was represented before this Court that the accused/opposite party during the pendency of the present revisional application will not pursue the remedy for bail before the Learned CMM Court, Calcutta on 06.02.2022 and 07.02.2023, they were released on bail in spite of the Enforcement Directorate informing the Learned CMM, Calcutta regarding such representation. Learned senior advocate appearing for the accused/opposite parties in his usual fairness submitted that they were not informed of such development and stated that the accused/opposite parties would appear before this Court on 09.02.2023. Today, it has been informed that the accused/opposite parties are present before this Court ..... 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