TMI Blog2023 (2) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... such is set aside. Application allowed. - C.R.R.263 of 2023 - - - Dated:- 9-2-2023 - Tirthankar Ghosh, J. For the Petitioner : Mr. Phiroze Edulji, Mr. Samrat Goswami For the Opposite Parties : Mr. Sekhar Basu, Mr. Milon Mukherjee, Mr. Ayan Bhattacherjee, Mr. Jakir Hossain, Mr. Md. Maqsood Alam, Ms. Ahie Arma, Ms. Ritu Das And Mr. Suman Majumder. ORDER The present revisional application has been preferred challenging the order dated 21.01.2023 passed by the learned Judge-in-Charge, Special CBI Court -I, Bichar Bhawan, Calcutta in ML Case No.01 of 2023 arising out of ECIR No.ECIR/KLZOII/ 21/2022 dated 21/10/2022. The grievance of the petitioner/Enforcement Directorate were to the manner in which the production warrant which was issued on 18.01.2023 by the Learned Special Court was recalled and the accused persons were directed to be set at liberty. Mr. Edulji, learned advocate appearing for the petitioner/Enforcement Directorate submits that the ECIR/KLZOII/ 21/2022 was registered by the Enforcement Directorate based on the First Information Report registered being Hare Street Police Station Case No.290/2022 dated 14.10.2022 under Sections 120B/420/46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Hospitality Pvt Ltd, TPG Commercials Pvt Ltd., wherein huge public funds have been transferred/credited into the accounts of aforementioned companies and subsequently these funds have been used for purchase of movable/immovable properties for their personal use/gain. 11. That, based on investigation conducted so far, it has been established that the accused Prasenjit Das is involved in the commission of offence of money laundering, by indulging in criminal conspiracy with several other persons, to obtain proceeds of crime with the aim of converting the illegal money into legitimate money. He has knowingly indulged, assisted, involved and is a party in the process and activity connected to the proceeds of crime including its concealment, possession, acquisition, use and projecting and claiming the said proceeds of crime as untainted property deriving illegal monetary gains and hence, has committed offence of Money Laundering u/s 3 of Prevention of Money Laundering Act, 2002 punishable under section 4 of the said Act. Learned advocate emphasized that custody of the opposite parties are required on the following grounds:- (a) To ascertain the trail of proceeds of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words custody and arrest are not synonymous terms. Though custody may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi [1984 Cri LJ 134 : (1984) 15 ELT 289 : 1983 MLW (Cri) 289 (Mad)] . Learned advocate for the Enforcement Directorate also relies upon Deepak Gupta Vs. Enforcement Directorate of India ABLAPL No.9695 of 2022 downloaded from the official website of the Orissa High Court paragraph 24 of the said judgment so relied upon is set out as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Enforcement Directorate and reasoned that the order dated 21.01.2023 passed by the Learned Special Court was on the basis of a precedent pronounced by the Hon ble Supreme Court in Vijay Madanlal Choudhary (supra). According to the learned senior advocate the finding of the Learned Special Court are based on the ratio settled by the Hon ble Supreme Court. Reliance was placed on J. Sekar alias Sekar Reddy Vs. Directorate of Enforcement reported in 2022 SCC Online SC 561 and attention of the to paragraph 23 which is set out as follows:- 23. In view of the aforesaid legal position and on analysing the report of the IT Department and the reasoning given by CBI while submitting the final closure report in RC MA1 2016 A0040 and the order passed by the adjudicating authority, it is clear that for proceeds of crime, as defined under Section 2(1)(u) of PMLA, the property seized would be relevant and its possession with recovery and claim thereto must be innocent. In the present case, the Schedule Offence has not been made out because of lack of evidence. The adjudicating authority, at the time of refusing to continue the order of attachment under PMLA, was of the opinion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such property being the property linked to stated scheduled offence through him. Lastly, it was submitted on behalf of the accused/opposite parties that the Enforcement Directorate cannot pursue an investigation until and unless a finality is attained in respect of the criminal proceedings and to that extent according to the opposite parties the order of the Learned Special Court dated 21.01.2023 is based on settled principles of law. I have taken into account the submissions of the learned advocates appearing for the petitioner/ED as also that of the accused/opposite parties and I have also assessed the order passed on 21.01.2023 by the Learned Special Court. On an assessment of the said order I find that the said order was based on paragraphs 456, 457 and 458 of the judgment of the Hon ble Supreme Court in Vijay Madanlal Choudhary (supra) wherein the Hon ble Supreme Court was drawing an analogy between ECIR vis- -vis FIR in the background of furnishing copy of ECIR to the person apprehending arrest or after their arrest. The same has no application to the situation dealt with by the Learned Special Court. It was incumbent upon the learned Special Court to take into accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er VIII of the 2002 Act to maintain law and order or for that matter, purely investigating into a criminal offence. The inquiry preceding filing of the complaint by the authorities under the 2002 Act, may have the semblance of an investigation conducted by them. However, it is essentially an inquiry to collect evidence to facilitate the Adjudicating Authority to decide on the confirmation of provisional attachment order, including to pass order of confiscation, as a result of which, the proceeds of crime would vest in the Central Government in terms of Section 9 of the 2002 Act. In other words, the role of the Authorities appointed under Chapter VIII of the 2002 Act is such that they are tasked with dual role of conducting inquiry and collect evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred upon them under Chapters III and V of the 2002 Act and also to use the same materials to bolster the allegation against the person concerned by way of a formal complaint to be filed for offence of money-laundering under the 2002 Act before the Special Court, if the fact situation so warrant. It is not as if after every inquiry pros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considerations and cannot be exercised on whims, caprice or fancy of the officer. 37. The section also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay. 38. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a person who has committed certain offences, and on the other hand, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities. . Having considered the aforesaid observations of the Hon ble Supreme Court, I am of the opinion that the interpretation of the learned Senior advocate appearing for the opposite parties that ECIR can be registered only after finality is attained in a criminal proceeding is not acceptable to this Court. Taking into account the provisions of Section 19(3), Section 45 (Explanation), Section 46, Section 65 and Section 71 of the PMLA Act, 2002 read with paragraph 324 of the judgment of Vijay Madanlal Choudhary (supra), I hold that the foundation, fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
