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TMI Blog2023 (7) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Court against MP/MLA for offences under Sec 406, 409 420, 506 (1) read with Sec 34 of the Indian Penal Code. 1.3) The allegation against the detenu is that, during 2014, while officiating as a Transport Minister in the Government of Tamil Nadu, he had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. On the basis of the said offences, a case is now registered by the Enforcement Directorate under Sec 4 of the PMLA, 2002 and he was arrested at about 1.30 AM on 14.06.2023. 1.4) The petitioner complains that Notice under Sec 41-A CrPC was not issued to him and the grounds of arrest was not informed to him at the time of arrest and he was not permitted to avail the right to consent a legal counsel in violation of Article 22 (1) of the Constitution of India necessitating this Petition. 1.5) The petitioner alleges that the Officers descended into his official house of the detenu without notice at about 7.30 AM on 13.06.2023 and started interrogating him for about 16 hours without proper food and water, manhandled and during the proceeding he fell sick, suffered severe chest pain and breathing trouble and he was admitted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst respondent submits that the Habeas Corpus Petition is notmaintainable in law and on facts as the alleged detenu can, by no stretch of imagination, be considered as in illegal detention as he is in Judicial Custody pursuant to an order of Remand passed by the Learned Special Court for PMLA cases by an order dated 14.6.2023. 2.2) The 1st Respondent submits that the Central Crime Branch, Chennai, had invoked the provisions of Indian Penal Code (IPC) and Prevention of Corruption Act (PC Act), which are Scheduled Offences to Prevention of Money Laundering Act (PMLA). As it appeared prima facie that Sh. V.Senthil Balaji & ors had acquired proceeds of crime as defined u/s. 2(1)(u), 2(1)(v) and 3 of PMLA, by commission of scheduled offence, an Enforcement Case Information Report (ECIR) bearing No. ECIR/MDSZO/21/2021 dated 29.07.2021 was recorded by the Respondent Department and investigation under the provisions of PMLA was initiated. 2.3) The first respondent submits that based on the reasons to believe that Sh. V Senthil Balaji had committed the offence of money laundering and that he has been in the possession of proceeds of crime involved in money laundering and also the records ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: 2.7) The 1st respondent submits that at the time of arrest he was informed of the grounds of his arrest and the grounds of arrest were specifically read over to him but he has refused to acknowledge and refused to sign. Therefore, the arrest order/memo was executed in the presence of two independent witnesses. While arresting Sh. V Senthil Balaji, the guidelines laid down by the Hon'ble Apex Court in the case of DK Basu were fully complied without any omission and also scrupulously followed the ingredients of the Article 22 of Constitution of India. 2.8) The 1st respondent submits that, immediately after the arrest 1.39 am, the Respondent had duly complied with the Constitutional requirements such as intimation of grounds of arrest to the Petitioner's husband and intimation of arrest to the Petitioner herein as well. There were no relatives of detenu staying at the premises. It is said relatives of detenu were at Karur and the detenu alone was staying at his official residence on the given day However, the Respondent had duly attempted to convey the information arrest of her husband over available contact numbers, viz., phone call Mr. Ashok Kumar, brother of Mr. Senthi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners/accused that section 19 of PMLA was violative of Article 21 and 22 of the Constitution of India as there was no mandate to comply with the mandatory requirements under the Code of Criminal Procedure was negatived by the Hon'ble Supreme Court. The Hon'ble 3 Judges Bench held that section 19 of PMLA was not unconstitutional and had all inbuilt safeguards and procedures which comply with Article 22 of the Constitution of India. In para 325, the Hon'ble 3 Judges Bench has categorically held provisions of Criminal Procedure Code are not comparable to the provisions of PMLA and PMLA stands on a different footing. In the light of the said judgment, the argument that the provisions of the Criminal Procedure Code have not been followed before effecting arrest is misconceived and is untenable, that too in a Habeas Corpus Petition and the Habeas Corpus Petition is therefore not maintainable and deserves to be dismissed. Further, the Hon'ble 3 Judges Bench of Hon'ble Supreme Court in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors. 2022 SCC OnLine 929 at Paras 322-326 has reiterated that Section 19 has in-built safeguards. The relevant extract is as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holding as follows; "11............Now, the court has to consider that whether the Investigating Agency has fulfilled the conditions as per Sec. 19 of PMLA or not? Sec. 19 of the PMLA requires certain conditions to be fulfilled prior to the arrest. In particular, the authorised officer on the basis of materials in his possession has to record the reasons to believe in writing in the File. The respondent has complied the said condition by recording his reason to belief in writing and it is available in File and a copy of the same has been produced before this court. Proof has also been produced to show that the Deputy Director of Enforcement Directorate has been authorised to investigate the matter. Another aspect of Sec. 19 of PMLA is the communication of the grounds of arrest to the accused and a mere communication of grounds of arrest would not suffice and the authorised officer has to record his reasons to believe in writing and it has to be communicated to the detenu. But, the accused in the present case Sh. V.Senthil Balaji was said to have refused to receive the Grounds of Arrest and also refused to sign. As he is not co-operating for the same, the arrest memo was said to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition. The first question posed by the High Court, thus, stands answered. In the present case, as on the date when the matter was considered by the High Court and the order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there was also an order of extension passed by the Central Government on 14-12-2018. The legality, validity and correctness of the order or remand could have been challenged by the original writ petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent appellate or revisional forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After going into the relevant issues on merits, the accused were remanded to further police custody. These orders were not put in challenge before the High Court. It was, therefore, not open to the High Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ospital, who has been admitted for treatment. ii. The Deputy Director of Enforcement Directorate shall interrogate the accused at the hospital by taking into consideration of his ailments and the treatment given to him in the hospital after obtaining necessary opinion from the team of Doctors, who are giving treatment to him about his fitness for interrogation iii. The Deputy Director of Enforcement Directorate interrogate the accused without any hindrance to the health conditions of the accused and also the treatment provided to him..." 2.16) The 1st respondent submits that accordingly. immediately by an e-mail communication a medical opinion was sought and obtained from the team of doctors of Kaveri Hospital, giving treatment to Sh. V Senthil Balaji. In their opinion medical dated 17 June 2023, 07.45 am., the doctors have opined as follows, "...He is presently hemodynamically stable and is under continuous cardiac monitoring in the ICU, He is advised bed rest and to avoid stressful conditions which might precipitate as adverse cardiac event. If he needs interrogation, it must be done under continuous cardiac monitoring in the ICU under medical supervision. The interrogatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it should be deemed that the accused is not under any effective custody so that the first 15 days custody period does not come in the way of the right of the investigating agency for effective investigation and interrogation of the accused. Hence this Hon'ble High Court may be pleased to exclude the period of treatment to be undergone in the hospital from the period of custody as interrogation and investigation would be rendered meaningless during hospitalization. Reliance in this regard is placed on the recent decision of Hon'ble Supreme Court in the case of CBI v. Vikas Mishra, 2023 SCC Online SC 377, wherein in a similar fact situation, this Hon'ble Court was pleased to hold that period spent in a private hospital would be excluded from the period of custody "21. No accused can be permitted to play with the investigation and/or the court's process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Petition filed by the petitioner:- 3.1) After craving leave for filing the additional submissions the petitioner submits that when the above-captioned Habeas Corpus Petition was taken up for hearing on 15.06.2023, this Hon'ble High Court of Madras (hereinafter, "this Hon'ble Court") was pleased to pass an order on 15.06.2023 containing certain directions wherein this Petitioner was permitted to file a copy of the remand order and to raise any additional grounds. I, therefore, crave leave of this Hon'ble Court to treat this Affidavit of additional grounds as part and parcel of the affidavit filed along with the above-captioned Habeas Corpus Petition. 3.2) The petitioner submits that that the detenu was one of the Members of the 15th Legislative Assembly of Tamil Nadu, returned as a candidate of the AIADMK party from Aravakurichi Assembly Constituency in the year 2016. I further submit that he was one of the 18 MLAS disqualified at the instance of Thiru. Edapaddi.K.Palanisamy, the then Chief Minister. I further submit that due to intra party disputes, he quit the party and joined the AIADMK faction AMMK in the year 2017 and thereafter the Dravida Munnetra Kazhagam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .15 PM on 14.06.2023, one of the Hon'ble judges recused from the case and hence the matter was transferred to another Hon'ble Bench. Due to administrative reasons and procedures to place the matter before another Hon'ble Bench, the matter came to be heard only on 15.06.2023. The Order of Judicial Custody Passed On 14.06.2023 Is Illegal 3.6) The petitioner submits that in the meanwhile on 14.06.2023, the Learned Principal Sessions Judge/Special Judge PMLA cases at the request of the Respondent visited Omandurar Government General Hospital, Chennai and remanded the detenu to Judicial Custody till 28.06.2023. At the time of remand, the detenu explained the ill treatment meted out by him at the hands of the Respondent and also that he was physically manhandled by the Respondent. He also represented that he was not informed about the grounds of arrest. A petition (this Petition was later numbered as Crl.M.P.No. 13521 of 2023) was also filed on his behalf to reject the request for remand. However, without applying her mind judiciously, the Learned Principal Sessions Judge dismissed the petition. In fact, when the petition was presented to her in the Hospital, the Learned Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iolation of fundamental right and hence, a Habeas Corpus Petition under Article 226 of the Constitution of India is maintainable and permissible. I further submit that violation of statutory provisions like Section 50(1) of Cr.P.C and Section 19(1) of PMLA 2002 are violation of fundamental right guaranteed under Article 21 of Constitution of India. Since those two provisions are the procedure established by law, depriving the detenu of his personal liberty in violation of them is amenable to exercise of jurisdiction under Habeas Corpus. 3.11) The petitioner submits that the Hon'ble Supreme Court has held the right under Article 22 (1) is an absolute right and the same cannot be deviated by any authority. This was followed by this Hon'ble Court in 1988 LW Cr. 503 Selvanathan alias Raghavan vs State and in Guruswamy vs State reported in 2004 1 LW Cr. 418. The claim of the Respondent is that the detenu denied to acknowledge the memo of arrest is an afterthought. Even admitting that the Respondent attempted to serve the arrest memo and the same was refused by the detenu, the said arrest memo has contained only the ECIR/MD and provisions of law. It does not contain the reason o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force." 3.15) The petitioner submits that, in this context, it is imperative to read section 41A of Code of Criminal Procedure Code, which states follows. "41A. Notice of appearance before police officer. (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested." (4) Where such person, at any time, fails t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under subsections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860). 5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not-(a)impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the Director. 41.A. Notice of appearance before police officer.- (1) The police officer shall], in all cases where the arrest of a person is not required under the provisions of sub-section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, credible or information h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the C.R.P.F (which is essentially under the Union Ministry of Home Affairs) to provide assistance for the Respondent authority. Even PMLA 2002 is silent about any situation where the Respondent is empowered to take the assistance of C.R.P.F or any other Central policing force. As such, the present C.R.P.F was unlawful and against the established principles of law. 3.21) The petitioner submits that alternatively, the presence of C.R.P.F signals the start of detention period; and the detenu was not produced before the jurisdictional Special Court within 24 hours of this event, as per Section 19 of PMLA 2002, which was not done. In Naga People's Movement of Human Rights vs Union of India (1998) 2 SCC 109, the Constitution Bench of the Hon'ble Supreme Court of India has held that even armed forces can only be deployed in aid of civil power and provisions of Cr.PC governing search and seizure shall apply over special legislation. According to paragraph 172 of Vijay Madanlal Choudhry case, the Respondent, who is an authority under the PMLA 2002 is not a police. As such, this gives rise to the question around the legality of the Respondent seeking custody of the Petitioner. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2023. In that Panchanama, it is noted by the Respondent as follows: "... Before the actual start of search and after the conclusion of search, Shri Ritesh Kumar, Assistant Director, Directorate of Enforcement and said accompanying officers/ staff offered their personal search which was politely declined by Shri.V. Senthil Balaji on both the occasions in our presence." ... "... During the course of search, Shri V. Senthil Balaji gave sworn statement under section 17(1)(f) of PMLA 2002 in our presence and no threat, coercion or inducement was used by the officers for getting the said statement of above said person." 3.25) The petitioner submits that Section 17(1)(f) of PMLA 2002 reads as follows: "1. Where the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section, on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person :... (iv) is in possession of any property related to crime then subject to the rules made in this behalf, he may authorise any officer subordinate to him to-/... (f) examine on oath any person, who is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides for custody of maximum period of 24 hours of a person arrested by an officer authorized to make such arrest. Within the said period the person so arrested is mandated to be produced before the nearest Magistrate. It may be noted that there is a conspicuous absence of any provision under PMLA 2002 regarding custody of a person arrested beyond 24 hours. By virtue of Section 65 of the Act, provisions of Section 167 Cr.P.C. would be applicable to such arrest made by the authorized officer under PMLA. Since such authorized officer is not a police officer as held in Vijay Madanlal Choudhary, the period of custody of such arrested person with the ED officials cannot be beyond the first 24 hours of arrest. 4) Sur Rejoinder filed by the 1st Respondent:- 4.1) The 1st Respondent submits that it has been categorically established that the main Habeas Corpus Petition itself is not maintainable in law and on facts as the detenu is in valid Judicial Custody pursuant to an order of remand dated 14.6.2003 passed by the competent and jurisdictional Leamed Special Court for PMLA cases. 4.2) The 1st Respondent submits that after having availed opportunity of effective participation every st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition challenging the 6th summons. Thus, on all the earlier summons as well as for the summons issued after arrest, the arrestee did not cooperate. Mere presence will not amount to appearance or cooperation. 4.7) The 1st Respondent submits that in additional grounds, the petitioner has stated that accused was detained from 7.30 am on 13.6.2023. After filing of our additional counter, petitioner has changed her stand and now stated, in Para-5 that the detenu reached the residence at 9.30 am on 13.6.2023. This shows that the petitioner is trying to improve upon his case and manufacturing wrong facts as per his convenience. 4.8) The 1st Respondent submits that he denies the averment in para-6 of rejoinder affidavit that no prudent man will believe the claim of ED that "Arrest memo" and "Grounds of Arrest" consisting of 6 pages were prepared and executed before 1.39 am. It is submitted that what is required is, "informing" of grounds of arrest and not service of Grounds of arrest. I submit that "informing" of 'grounds of arrest' to an arrestee is provided where a person is suddenly taken into custody. In this case, the arrestee is aware of the registration of ECIR in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is telephone number is 9442253536. He was called on the said number 9442253536 but he did not pick up the call and hence I sent the text message to the phone number 9442253536 of Mr. Ashok Kumar. The mentioning of 9 digits in the arrest memo is an accidental clerical mistake which would not vitiate any proceeding and the petitioner is attempting to make a mountain out of a mole hill in this regard. As a precaution, print out of screen-shot of mobile call along with print out of email sent were enclosed along with the arrest memo. The learned Special Court Judge, after having perused the same has recorded that 'proof filed' for communication of arrest to relatives. That is the reason, at about 11.49 am on 14.6.2023, the petitioner was able to send email to ED office that her husband was arrested in the above case by giving the details of the case in which he was arrested. Receipt of email is not denied by the petitioner. 4.11) The 1st Respondent submits that he denies the averment in para-8 of rejoinder affidavit that this document of communication of arrest to relatives, should have come into existence at or before 1.39 am on 14.6.2023. This statement seems to have been made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld amount to absolute illegality in passing the remand order so as to entertain and grand relief in the Habeas Corpus Petition. Yet another question as to whether or not the period spend by the detenu in the hospital should be excluded from the first 15 days of judicial custody for the purposes of granting custody of the detenu to the respondents, was also framed as per the submissions made by the learned Additional Solicitor General of India. 5.2) The matter was posted to 22.06.2023 for filing of counter and disposal of the Habeas Corpus Petition. By the same order, by considering the medical records and the medical bulletin issued by the Omandurar Hospital upon the request made on behalf of the petitioner, this court found that the detenu needed emergency By-pass surgery and treatment for blockages in arteries, Since on behalf of the detenu, it was pleaded that their regular physician is at Kauvery Hospital, Chennai, this Court directed shifting of the detenu from the Government Hospital to Kauvery Hospital, Chennai so as to undergo the treatment at the hospital of the choice of the detenu at their own cost. 5.3) The further developments are that the detenu was shifted to Kauve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case pertains to offences said to have been committed during the year 2014. 6.3) The respondents on the other hand contend that the respondents hadsufficient grounds for detaining the detenu, the officers are only doing their duties and the detenu being an influential minister in the ruling government has not cooperated in the investigation process and threatened the investigating officers and that the procedures of Sec 19 of PMLA, 2022 is scrupulously followed. 7) Arguments of the counsels:- 7.1) Learned senior counsels for the petitioner Shri. Mukul Rohatgi & Shri N.R Elango framed their arguments on the 3 contested points viz. (1) on the question of exclusion of time. (2) Maintainability of Habeas Corpus Petition and (3) ED cannot seek custody as they are not Police Officers. Shri Tushar Mehta, learned Solicitor General of India and Shri.A.R.L.Sundaresan, learned Additional Solicitor General of India, framed their arguments on the 3 contested points in 7 sub titles viz. (1) Maintainability of Habeas Corpus Petition. (2) No legal requirement to comply with Sec 41 A of CrPC in the lights of additional safeguards under Sec 19 of PMLA, 2002. (3) Rules of Sec 19 of PMLA duly fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry & Ors vs UOI & Ors 2022 SCC Online SC 929 holding that the Enforcement Directorate officials under PMLA are not Police officers. Per contra, learned Solicitor General of India contends that the issue is settled and relies on the decision of the Hon'ble Supreme Court in the case of Directorate of Enforcement vs Deepak Mahajan 1994 (3) SCC 440, Vijay Madanlal Choudhary & Ors vs UOI & Ors 2022 SCC Online SC 929, Anupam Gulkarni Case, P Chidambaram vs Directorate of Enforcement (2019) 9 SCC 24 the Assistant Director ED vs Hassan Ali Khan (2011) 12 Supreme Court Cases 684. Perusal of the case laws cited by the respondents indicated that the first four cases had no connection with the issue on hand namely the question of remand of police custody to ED officers under Sec 167 CrPC for investigation of offences under PMLA, 2002 and therefore are distinguishable from the present case. In Hassan Ali Khan case, the Hon'ble Supreme court has indeed allowed custody under extra ordinary circumstances as recorded by Bench in para 3 and para 4 of its order dated 17.03.2011. The question whether the parliament intended to award custody to the ED Officers under PMLA or not does not appear to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial order passed by a competent court. This applies to all investigating agencies including Police officers. Meaning, an accused or suspect will be available for custodial interrogation immediately after arrest for 24 hours for all agencies after which they have to necessarily produce the detenu to a competent court for further orders. A 60 day judicial remand for offences carrying punishment of less than 7 years and a 90 day judicial remand for those offences carrying punishment above 7 years is contemplated under the statutes. Thereafter, if the detenu can furnish bail, he would be released from judicial custody. In rare cases where custodial interrogation is necessary, on an application made by a competent authority under Sec 167 of CrPC, the competent court will take a judicious decision to award custody to the empowered agencies for a maximum period of 15 days from the date of initial remand. Since custody other than judicial custody is an exception and not a rule as it heavily impinges on the fundamental right of citizens Sec 167 CrPC is the lone provision under which such custody is awarded. No special act has ever intended to empower officers to seek custody otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be garlanded or make speeches. He shall not also be allowed to receive food direct from other people. (G.O. Ms. 1512, Home 13 May 1964) (ii) If a prisoner at the time of arrest is already garlanded, a complete search shall be made immediately after arrest and the garlands as well as the other articles except wearing apparel shall be removed and taken possession of after preparing a Seizure Mahazar. (3) (a) Dhurries and blankets are supplied for the use of prisoners in Police lock-ups according to the scale noted below:- (i) All Police Lockups .. Two dhurries each. (ii) Police Lock-ups in Stations where the Police Staff are supplied with blankets. .. Two blankets each. These articles will be treated as Station property and the officer in charge of the Station or Out-Post will be responsible for their issue to such of the prisoners who do not provide themselves with their own bedding. (b) The Police Lock-up if it contains a prisoner or prisoners shall be unlocked at day-break. The bedding of the prisoners shall be at once brought outside, well shaken and, if it is clean, left for some hours in the sun. (G.O. 3017, Home 2nd Aug- 1937) (c) The night vessels shall be removed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of Money Laundering is distinct from any or all of the scheduled offences under PMLA, 2002, there is a bar on the ED officials to suo-moto file ECIR for the offence of money laundering. An FIR or Complaint by a competent authority in a predicate offence is a sine qua non for ED officials to initiate a proceeding under the PMLA. 8.9) Chapter IV of PMLA, 2002 obligates the Banking Companies, Financial Institutions and intermediaries that are normally touted as the routes to integrate laundered money back into the system to provide information to the Enforcement Directorate officials in the format so desired and keep records. It is a sweeping power that can help identify the trails of the proceeds of crime and the trails of the laundered money to confiscate property that are proceeds of crime so also to complete substantial meaningful investigations. It was observed by the Hon'ble Supreme Court in the case of Vijay Madanlal Choudhary & Ors vs UOI & ors the proceeding under PMLA, 2002 is more in the nature of inquiry proceedings and not investigations. The collection of evidences to track the POC and money laundering trail are predominantly documentary in nature. Therefore, it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on compliance of the provisions of Sec 9 of PMLA, 2002. It was also assailed that supply of remand application is no compliance under Sec 19 of PMLA 2002. In support of this claim they relied on the decision of a full bench of this court in Selvanathan @ Raghavan reported in (1989) 1 MWN (Crl) 117. It was urged that failure to issue notice under Sec 41 A CrPC makes the arrest illegal. It is an important procedural safe guard prescribed in terms of Article 21 of the Constitution of India. Reliance was placed in the case of Arnesh Kumar vs State of Bihar (2014) 8 SCC 273 where inter-alia directions were issued to the effect that no arrests can be made without issuance of 41 A Notice if the punishment for the offence is below 7 years. They further relied on Satendar Kumar Antil vs CBI (2022) 10 SCC 51 wherein it was held that the consequences of non compliance of Sec 41 A certainly inure to the benefit of the person detained while considering the bail. It was averred that the argument of Ed that Sec 41 A CrPC is not applicable to PMLA cases is not correct and cited the extant provisions of CrPC. They relied on Satendra Antil case that directed that courts would have to satisfy themsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout authority of law. Reliance is placed in State v. H.Nilofer Nisha, (2020) 14 SCC 161. He would urge that as the detenu had moved bail that was rejected and therefore Writ of Habeas corpus will not lie. He contended that The order of remand can be challenged only in appropriate proceedings either under the revisional jurisdiction or appellate jurisdiction. 9.3) He contested that the case of Gautam Navlakha relied by the petitioner does not lay down the law and is distinguishable from the case on hand. He averred that the judgment in Madhu Limaye &Ors. (1969) 1 SCC 292, being relied upon by the petitioner, is completely distinguishable for the reason that there were two major constitutional infirmities in that case namely, as evident from para 8 i.e. no FIR was registered on 06.11.1968 which mentioned the offence of section 143 of IPC which was also the date when Madhu Limaye was arrested. The FIR came to be recorded only on 19.11.1968 because the matter had been brought to Supreme Court by way of an Article 32 petition. The authorities in that case realized that arrest could not have been made for non-cognizable offences and it was under these circumstances that the Court foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is not maintainable once the remand order is legal even if there is infirmities in the procedures preceding the remand and submitted many case laws. 9.6) On the face of the case laws submitted by the parties, it would appear that once a legal remand order which is judicial in nature is passed then there is no way Habeas Corpus Petition will lie and the only remedy available to the detenu is to contest and set aside the remand order. But as you delve deeper, it would indicate that the case laws relied extensively by both the petitioner and the respondents governed two kinds of detention. Preventive detention before commission of crime and detention after commission of crimes. In the case of preventive detentions, the contention that the existence of a valid judicial remands order will render the procedural violations at the hands of the executive of no consequence. In detention against offence cases, where the object of arrest and detention is very different from that of preventive detention, a failure to follow the procedural safeguards at the time of arrest will vitiate the proceedings and a writ of habeas corpus would lie. In other words, in preventive detentions where cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to arrest proceedings under PMLA, 2002 and whether non compliance of the said provision in cases attracting punishment of less than 7 years would vitiate the arrest proceedings under PMLA and subsequent remand, is of no consequence to the outcome of the present case and has become redundant for the purposes of disposing this Habeas Corpus Petition. Therefore the contestations on that count advanced by the parties are left open. 10) On Exclusion of Time:- 10.1) It is now a settled law as laid down in various decisions of the Hon'ble Supreme Court pointed out by the petitioners that the period of police custody cannot be extended beyond 15 days from the date of the initial remand in terms of Article 22 and the relevant provisions of the Criminal Procedure Code, 1973. And it is also pointed out by the learned Solicitor General of India that the Hon'ble Supreme Court in the case of CBI vs Vikas Mishra 2023 SCC online Raj 861 had deviated from a stricter view. It was an extraordinary situation where the accused by unscrupulous methods schemed to frustrate investigation by abusing the constitutional safeguard prompting the Hon'ble Supreme Court to invoke it's discretionary powers to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014. It is alleged that the detenu had obtained money from third parties promising jobs in the Transport Department and thereafter cheated them. On the basis of the predicate offences, a case is registered for an offence under Section 4 of the Prevention of MoneyLaundering Act, 2002 (hereinafter referred to as 'P.M.L.A'). 3. Pursuant thereto, on 13.06.2023, the respondent officials suddenly came to their house at Greenways Road, Chennai, in the morning at about 7.30 A.M and interrogated the detenu continuously for about 16 hours and searched his office and residence. He was denied permission to meet his relatives and advocate and was arrested at about 1.30 A.M the next day. The offence is punishable maximum 7 years and therefore without following Section 41-A of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.,') and other provisions of Cr.P.C., the arrest is made. The mandate of informing the grounds of arrest under Article 22 of the Constitution of India is also not followed and the relatives were not informed. 4. After the arrest and due to manhandling, he became seriously ill and was taken to the Omandurar Government General Hospital, Chen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and the detenu was arrested under Section 19 of the P.M.L.A, since the respondents had reasons to believe that he had committed an offence under Section 3 punishable by 4 of the P.M.L.A. At about 1.39 A.M, the grounds of arrest, which was reduced into writing, was attempted to be served on the detenu, but, he refused to accept the same. Therefore, the arrest memo was executed in the presence of two independent witnesses. At about 1.41 A.M, intimation of arrested was tried to be conveyed to one Ashok Kumar, brother of the detenu and one Nirmala, sister-in-law of the detenu through phone calls. However, since they did not pick up the phone calls, intimation of arrest was conveyed to Ashok Kumar through text message at 1.44 A.M. Since the detenu complained about chest pain, he was taken and admitted at Omandurar Government Hospital at 02.10 A.M. Once again, at about 8.12 A.M, intimation of arrest was conveyed to the petitioner herein namely, Megala, wife of the detenu, to Ashok Kumar, brother of the detenu and to one Sathish Kumar, Chartered Accountant of the detenu through e-mail also. At about, 12.00 P.M, a petition for remanding the detenu was filed before the learned Princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nu it was pleaded that their regular Physician is at Cauvery Hospital, Chennai, this Court directed shifting of the detenu from the Government Hospital to Cauvery Hospital, Chennai so as to undergo the treatment at the Hospital of the choice of the detenu at their own costs. 8. Thereafter, further developments are that the detenu was shifted to Cauvery Hospital and it is represented that he had undergone the said surgery and treatment and is presently continuing his treatment in the said Hospital. On 16.06.2023, the respondents pressed for custody of the detenu and an order has also been passed by the learned Principal Sessions Judge, Chennai granting the custody, but, however, on conditions not to remove him from the Hospital and to act as per the fitness directions of the treating Doctors. 9. Aggrieved by the order of this Court, dated 15.06.2023, entertaining the Habeas Corpus Petition as well as granting interim relief of shifting of the detenu to a Private Hospital and also the conditions imposed by the learned Principal Sessions Judge, Chennai in the order granting custody, two Special Leave Petitions were preferred by the respondents on the file of the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tody. (v) Even after passing of the interim order, the Enforcement Directorate, inspite of objections on behalf of the petitioner that this Court is in seizin of the matter, pressed for Police custody, by virtually overruling the order of this Court, the learned Principal Sessions Judge has also grant an order on 16.06.2022 entrusting the detenu to Police custody, thus virtually sitting on appeal over the order of this Court. (vi) The Enforcement Directorate is not vested with the powers of the Station House Officer and therefore, they cannot be termed as Police officers and what is contemplated under Section 167 of Cr.P.C., is only Police custody and therefore, the other Investigating Agency, not being a Police officer, is not entitled to pray for custody of the detenu at all. The P.M.L.A does not expressly grant the powers to act as a Station House Officer as is granted in other enactments and thus, no police custody can be claimed by them; (vii) In any event, the Police custody can be granted as pr Section 167 of Cr.P.C., only in the first 15 days of judicial custody and the said period of first 15 days is an inviolable rule enuring the benefit of the detenu and therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Hon'ble Supreme Court of India in Satender Kumar Antil Vs. Central Bureau of Investigation and Anr. [(2022) 10 SCC 51] to contend that Section 41-A of Cr.P.C., compliance is mandatory even for the Enforcement Directorate and non-compliance thereof vitiates the entire arrest and the subsequent remand. 13. The learned Senior Counsel by taking this Court through judgment of the Hon'ble Supreme Court of India in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. [2022 SCC OnLine SC 929] and more specifically paragraph Nos.9, 33, 142, 325, 326 and 449 of the said judgment, would contend that the Hon'ble Supreme Court of India did not specifically rule that the provisions under Sections 41 and 41-A of Cr.P.C., do not apply to the P.M.L.A. The learned Senior Counsel drew the attention of this Court to the Sections 4(2), 5, 40, 41, 41-A, 50 and the other provisions relating to arrest in the Code of Criminal Procedure. The learned Senior Counsel relied upon the Sections 19, 65 and 71 of the P.M.L.A. After placing reliance on the aforesaid provisions, the learned Senior Counsel would draw the proposition that firstly, the importance of information of grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entities who have or who authorise the custody of the detenu, directing them to produce the detenu before the Court and set the detenu at liberty if such custody is illegal. In this case, there is no question of direction to the Enforcement Directorate since the detenu is no more in their custody and is in the judicial custody of the Court. Therefore, Habeas Corpus Petition is not maintainable at all once the Judicial Order of Remand is passed. (b) The passing of the order of judicial remand need not precede the filing of the Habeas Corpus Petition and even as of the date of return of notice i.e., subsequently also, once the Order authorising the detenu to judicial custody comes into existence, the maintainability and entertainability of the Habeas Corpus Petition ends at that moment and no further relief can be granted in the Habeas Corpus in respect of any allegations / violations prior to such remand. (c) Even the illegalities alleged in respect of the remand order can only be canvassed by way of appropriate appeal / revision by specifically impugning the said Remand Order in the higher fora and the same cannot be gone into in a petition for Habeas Corpus and therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once again informed the grounds of arrest to the detenu. (h) The language of Section 19 as well as the Article 22 of the Constitution of India is very clear that it is not exactly at the very moment of arrest, the compliance should be made, but, it should be as soon as possible. In this case, it is made at the very moment of arrest and also as soon as possible in every possible way. (i) On a perusal of the order of remand, it would be clear that it is not mechanical and that there is due application of mind. Therefore, even assuming that Writ of Habeas Corpus is maintainable, none of the grounds projected are factually tenable and the remand order is not expressly impugned in the prayer. (j) As far as the custody of the detenu is concerned, firstly, it is the duty of the Enforcement Directorate to thoroughly investigate the serious offence of the nature and it is in public interest to bring out truth and unearth the money trail and therefore, custodial interrogation is extremely essential in this matter. (k) The Enforcement Directorate did not in any manner act illegal in praying for the custody as the application was made at the time of remand itself before the appropriate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Solicitor General of India placed reliance on CBI Vs. Vikas Mishra1 [2023 SCC OnLine SC 377]. In support of his contention that the provisions relating to arrest contained in Sections 41 and 41-A of Cr.P.C., are not applicable and the procedure under Section 19 only is to be followed, the learned Solicitor General of India placed reliance on Vijay Madanlal Choudhary (cited supra) more specifically relying upon the paragraph Nos.3, 9, 23, 142, 323, 324 and 456 of the said judgment. 18. The learned Solicitor General of India placed reliance on P.Chidambaram Vs. Directorate of Enforcement [(2019) 9 SCC 24], more specifically on orders of Enforcement of Police custody of various accused by various Courts to contend that the respondents / Investigating Agency is entitled for Police custody. 19. In support of his contention that the Enforcement Directorate has power to take custody and the provisions of the Code of Criminal Procedure under Section 167 etc., to be applicable, the learned Solicitor General of India placed reliance on the judgment of the Hon'ble Supreme Court of India in Directorate of Enforcement Vs. Deepak Mahajan and Anr. [(1994) 3 SCC 440] more specifically r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswers the issue only, the existing rule could have been followed by the Hon'ble Supreme Court of India. Alternatively, he would submit that when a larger bench consisting of three judges has taken a view in Budh Singh's case (cited supra), the High Court should only follow the larger bench and refuse the extension of time. (c) Reiterating maintainability of the Habeas Corpus Petition, the learned Senior Counsel would once again submit that the reading of Madhu Limaye's case (cited supra) and Gautam Navlakha's case (cited supra) by the learned Solicitor General of India is incorrect and they apply in all force to the instant case on hand. (d) Again placing reliance on Arnesh Kumar Vs. State of Bihar and Anr. [(2014) 8 SCC 273] and Satender Kumar Antil's case (cited supra), the learned Senior Counsel would submit that essentially arrest is violative of Section 41-A of Cr.P.C., and once it violates, even though the learned Solicitor General of India is right in contending that the Court has to consider the subsequent judicial remand as on date of return of notice, still the remand order is susceptible of challenge in the present proceedings and if the illegali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the rival submissions made on either side and perused the material records of the case. The following questions arise for consideration:- (i) Whether or not a Writ of Habeas Corpus would be maintainable after passing of Judicial Order of Remand of the detenu and if so, on what premises? (ii) Whether the petitioner herein had made out a case for exercise ofpowers under Article 226 of the Constitution of India to set the detenu free? (iii) If the detenu is not be set free, then whether the period from the moment of his arrest on 14.06.2023, whereby, he is admitted in the Hospital till his discharge is to be excluded while computing the time of initial 15 days from the date of remand to judicial custody under Section 167 of Cr.P.C., so as to entrust him for the custody of the respondents ? (iv) What reliefs are to be granted in the present Habeas Corpus Petition? G. Question No.i : 24. To answer this question, it is necessary to advert to the relevant decisions which are relied upon by the learned Senior Counsel on either side. In Madhu Limaye's case (cited supra), the Hon'ble Supreme Court of India held that the Orders of Remand would not cure grave const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date on which the application for habeas corpus is made to the Court. This Court speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India: [AIR 1966 SC 816 : (1966) 2 SCR 427 : 1966 Cri LJ 602] "It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing." In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab [(1952) 1 SCC 118 : AIR 1952 SC 106 : 1952 SCR 395 : 1952 Cri LJ 656] and Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa [(1972) 3 SCC 256, 259 : 1972 SCC (Cri) 481] where it was said (at p. 259, para 7): "in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". and yet in another decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them." (emphasis supplied) 27. The Hon'ble Supreme Court of India in Serious Fraud Investigation Office's case (cited supra), while considering the ex post facto extension granted by the Central Government, by which only, the Agency had jurisdiction to proceed further, considered the issue in detail and held that the Habeas Corpus Petition will no longer be maintainable once there is an Order authorising judicial custody as the custody is the pursuant to the custodial judicial function exercised by a competent Court. The final conclusion reached on the subject exhibits in paragraph No.26 which is extracted hereunder for ready reference : " 26. It is true that the decision in Dashrath Rupsingh Rathod [Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 : (2014) 4 SCC (Civ) 676 : (2014) 3 SCC (Cri) 673] was in the context of a criminal complaint under Section 138 of the Negotiable Instruments Act and not while dealing with an issue of maintainability of a writ petition under Article 226 of the Constitution. It cannot, therefore, be said that in the present case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC (Cri) 481 : AIR 1971 SC 2197] (SCC p. 258, para 5) that a writ of habeas corpus cannot be granted '5....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'." 21. The principle laid down in Kanu Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , thus, is 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. 22. At this juncture, we may profitably refer to the Constitution Bench decision in Sanjay Dutt v. State [(1994) 5 SCC 410 : 1994 SCC (Cri) 1433] wherein it has been opined thus: (SCC p. 442, para 48) "48. ... It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order." 23. Keeping in view the aforesaid concepts with regard to the writ of habeas corpus, especially pertaining to an order passed by the learned Magistrate at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order [Manubhai Ratilal Patel v. State of Gujarat, Special Criminal Application No. 2207 of 2012, decided on 7-8-2012 (Guj)] of remand cannot be regarded as untenable in law. It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao [(1972) 3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971 SC 2197] and Kanu Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri) 280], the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal or revision proceedings under the Code of Criminal Procedure and not in the Habeas Corpus Petition; (v) However, absolute illegality, total non-application of mind or lack or jurisdiction and wholesale disregard to the fundamental rights in a given facts and circumstances of a case would be an exception where the Habeas Corpus Court can examine the illegality of arrest and detention (Paragraph No.21 of Madhu Limaye'; Pargraph 31 of Manubhai Ratilal Patel and paragraph No.71 of Gautam Navlakha). Thus, I answer the question holding that a petition for Habeas Corpus agitating to produce the detenu and set him at liberty normally would not be maintainable after the order of judicial remand, but, only under the exceptional circumstances of absolute illegality as state above. H. Question No.ii : 32. Now, submissions are made on behalf of the petitioner, the present case comes within the exceptional circumstances and therefore, the Writ of Habeas Corpus should issue. First, we shall deal with each and every violation that is pleaded before deciding the question. (i) Violation of Article 22(1) : It is the case of the petitioner that the detenu was not informed about the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledge and signed the same. Aslo relatives of the accused are said to have been not available in the place of arrest and they have been informed through SMS and Email since they didn't pick the phone call. Proof has also been produced. I informed the accused about the grounds of arrest and his right of legal assistance. The accused complained that he was man handled by the ED officials but no complaint of any bodily injury. The prosecution has established Prima facie case against the accused for the offences u/s. 3 of Prevention of Money Laundering Act, punishable u/s.4 of the said Act. Hence the accused is remanded to Judicial custody till 28.06.2023." 34. This apart, copies of e-mails sent to the relatives of the detenu including the petitioner herein and SMS messages sent through telephone numbers are also produced. Therefore, I am satisfied that there due compliance of the Article 22 of the Constitution of India and the provisions in the Code of Criminal Procedure relating to the same in this regard. (ii) Non-following of Sections 41 and 41-A of Cr.P.C., : 35. To consider the submissions, it is essential to extract Sections 4(2), 5, 41 and 41-A of Cr.P.C., which read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years whether with or without fine or with death sentence and the police officer has reason to believe on the basis of that information that such person has committed the said offence; (c) who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Special Court or Magistrate's Court. 62. Punishment for vexatious search. -Any authority or officer exercising powers under this Act or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Choudhary's case (cited supra) specifically in the context that Section 19 prescribes arrest on the belief of involvement in the offence itself, while Sections 41 and 41-A of Cr.P.C., have greater protection inasmuch as in respect of the offence punishable up to 7 years, arrest should not be automatic in all cases merely on the involvement in the offence, but, either should be necessary on the ground mentioned in Section 41(1)(b) of Cr.P.C., and in all other cases, notice under Section 41-A Cr.P.C., only has to be issued. The contentions were considered by the Hon'ble Supreme Court of India in the paragraph No.322 onwards of the said judgment. After considering the necessity of Section 41 Cr.P.C., in paragraph No.323, finally, the Hon'ble Supreme Court held as follows in the paragraph Nos.325 and 326 which are extracted for ready reference : " 325. The safeguards provided in the 2002 Act and the preconditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons involved in the process or activity connected with the proceeds of crime so as to ensure that the proceeds of crime are not dealt with in any manner which may result in frustrating any proceedings relating to confiscation thereof." Therefore, it is clear that the issue is no longer res integra and the Hon'ble Supreme Court of India had considered that the special provision in the form of Section 19 adequately safeguards the interests of the accused and thus, the express application of Sections 41 and 41-A of Cr.P.C., stood negated in respect of the offence under P.M.L.A. 39. But, at the same time, I find that subsequently, in Satender Kumar Antil's case (cited supra), the Hon'ble Supreme Court of India even though considered the offence under P.M.L.A under category (C), however, in paragraph No. 27, held that the requirements under Sections 41 and 41-A of Cr.P.C., are facets of Article 21 of the Constitution of India. If that be so, a careful reading of the judgments of the Hon'ble Supreme Court of India in Vijay Madanlal Choudhary's case (cited supra) and Satender Kumar Antil's case (cited supra) would lead us to the conclusion that per se, it is only Section 19 of P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy been remanded to judicial custody, this Petition for rejection of remand doesn't arise. Hence this Petition is dismissed as infructuous." 43. To that extent, I agree on the point of law that the proper exercise of powers by the learned remanding Judge would be to first consider the objections and decide upon the objections which should be made immediately and then make the order of remand or otherwise simultaneously. In this case, the procedure otherwise is incorrect. But, the factual scenario on hand is that the learned Presiding Officer visited the Hospital after examining the conditions and after examining the grounds of arrest, reasons mentioned in her remand order is said to have authorised the judicial custody after hearing the arguments of the learned Senior Counsel on the objections as to the remand and she also answers the questions as to informing of grounds of arrest. Thereafter she decided the petition aforesaid. Even though a petition for objections has been taken up subsequently, all the substantive allegations of non-information of the grounds, non-existence of prima facie case and other concerns were independently considered by her which reflects in the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner. I. Question No.iii : 46. Coming to the prayer of exclusion of time, it is the first contention of the learned Senior Counsel for the petitioner that the respondents are not Police officer to seek custody. In this regard, I have already extracted Section 65 of P.M.L.A and if Section 65 is read along with Section 4(2) and 5 of Cr.P.C., it can be seen that in respect of the investigation of the offences under P.M.L.A, since no other contrary or separate procedure is contained in P.M.L.A, the provisions relating to investigation would be applicable to the offences relating to P.M.L.A. Already, this issue has been considered by the Hon'ble Supreme Court of India in Directorate of Enforcement's case (cited supra) in the context of FERA and it is relevant to extract the paragraph Nos.132 to 136 which read as follows : " 132. For the aforementioned reasons, we hold that the operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the FERA and Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion speaks of Police custody and since it is the contention of the Enforcement Directorate that they are not Police officers, then they are not even entitled to seek Police custody. I am not able to accept these submissions because firstly, under Section 167(2) of Cr.P.C., the phrase used is "authorise detention of the accused in such custody as the Magistrate thinks fit". Therefore, the word "Police" is not even specifically used at the first instance. In any event, when Section 65 of P.M.L.A expressly makes it clear that the provisions in the Code of Criminal Procedure relating to investigation will apply to P.M.L.A, then Section 167 Cr.P.C., should be applicable to mutatis mutandis and therefore, the word "Police" has to be read as Investigating Agency or the Enforcement Directorate. Therefore, the first contention that the Enforcement Directorate cannot seek for Police custody is without any merits. 48. Further, the learned Solicitor General of India also relied upon P.Chidambaram Vs. Directorate of Enforcement's case (cited supra) and several other orders, whereby, the Hon'ble Supreme Court of India and the various other fora have, as a matter of fact, granted custody to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction." (emphasis supplied) 50. This position was further reiterated in the judgment in Budh Singh Vs. State of Punjab's case (cited supra) and the paragraph No.5 of the said judgment is extracted hereunder : " 5. In the face of facts, as noticed above, the order of the learned Judicial Magistrate, dated 4-1-2000, in our opinion, did not require any interference. The mandate of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the first 15 days from the date of arrest. It is submitted that therefore now the police custody which shall be beyond the period of 15 days from the date of arrest is not permissible." 52. Thereafter, in the paragraph No.21 ultimately, it is held as follows : " 21....Thus, the respondent-accused has successfully avoided the full operation of the order of police custody granted by the learned Special Judge. No accused can be permitted to play with the investigation and/or the court's process. No accused can be permitted to frustrate the judicial process by his conduct. It cannot be disputed that the right of custodial interrogation/investigation is also a very important right in favour of the investigating agency to unearth the truth, which the accused has purposely and successfully tried to frustrate. Therefore, by not permitting CBI to have the police custody interrogation for the remainder period of seven days, it will be giving a premium to an accused who has been successful in frustrating the judicial process." 53. It is argued before this Court that even though this Court that this Court should look into the strength of the bench and since Budh Singh Vs. State of Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty and is sentenced to prison, Compassion is showered on him. As a matter of fact, the rights guaranteed by our Constitution to the prisoners can be better explained by the concepts of 'Supreme Compassion' as advocated by Vallalar (Thaniperumkarunai) and highest order of forgiving by doing good to the offender as enunciated in Thirukkural (Nannayam Seithu vidal). And compassion leads to Shanthi in the society. Now, keeping that in the mind, provision relating to investigation has to be approached and interpreted with the primary aim of unearthing the truth. Therefore, in that view of the matter, I am of the view that the time spent by the detenu / accused in the Hospital, only such time till he is not in a position to be fit to be interrogated has to be excluded from the initial 15 days time for grant of custody to the respondents and accordingly, I answer the question. 57. Having answered the above question, I place on record one disturbing fact. By the interim order dated 15.06.2003, this Court, based on the medical reports of the detenu, had agreed that the detenu needs emergency medical treatment and ordered shifting to Cauvery Hospital for treatment. As a matter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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