9911796707
TMI Blog2023 (11) TMI 374X X X X Extracts X X X X X X X X Extracts X X X X ..... nd/or Direction, to forthwith release the Petitioner from the abjectly unlawful and arbitrary custody and incarceration. (b) This Hon'ble Court be pleased to issue a writ of certiorari and/or a writ, order or direction in the nature of certiorari and/or any other writ, order or direction and/or any other order to quash and/or set aside Arrest Memo dated 1st September 2023 issued by the Respondent No. 2, along with its effect, implementation, and all consequent actions take thereunder, Arrest Order dated 1st September, 2023 issued by the Respondent No. 2, along with its effect, implementation, and all consequent actions taken and also Remand Applications dated 2nd September 2023 and 11th September, 2023, along with its effect, implementation, and all consequent actions take thereunder; (c) This Hon'ble Court be pleased issue a writ of certiorari and/or a writ, order or direction in the nature of certiorari and/or any other writ, order or direction and/or any other order to quash and/or set aside Remand Orders dated 2nd September, 2023 and 11th September, 2023 passed by the Hon'ble Designated Court under the PMLA Act, Sessions Court, Mumbai along with its effect, im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner not being produced before the competent Court within 24 hours of arrest, as statutorily mandated, we had at the very outset, made it clear to the parties, that we would first decide whether the petition filed by way of a writ of habeas corpus is maintainable / not, in the facts of the present case, and if maintainable, then proceed to decide the other prayers. 4. Mr. Desai, learned senior counsel vehemently submitted that the present petition seeking writ of habeas corpus is maintainable, considering that the arrest of the petitioner was ex-facie illegal, being without jurisdiction; and that the remand orders passed by the Competent Court were without application of mind, passed in a routine and mechanical manner. According to Mr. Desai, the petitioner was also detained beyond 24 hours, contrary to the statutory mandate. He submitted that there was a complete violation of Articles 21 and 22(1) of the Constitution of India and that no remand orders could rectify the illegality committed by the prosecution. He submitted that it was the duty of the remanding Court to satisfy itself, as to whether the constitutional and statutory safeguards were complied with and that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that it is always open for the petitioner to challenge the remand orders before the appropriate forum. According to Mr. Venegavkar, another reason for not entertaining a writ of habeas corpus is, that on the date of return of rule, the person i.e. the petitioner was found to be in lawful custody, by virtue of the judicial orders. Mr. Venegavkar has setout the dates and events to show that on the date of return of rule, the petitioner was in the custody of a Competent Court of law; and, that even before and after the filing of the present petition, several judicial orders have been passed by the Competent Court extending the custody of the petitioner from time to time. He submitted that it is settled principle of law that once the person is found to be in the custody of the Court, by a judicial order i.e. on the date of return of rule (12th October 2023 i.e. when the affidavit-in-reply of the Enforcement Directorate was placed before the Court), then, the said person cannot be said to be in illegal custody or illegal detention. 6. Mr. Venegavkar further submitted that admittedly, the three issues raised by the petitioner in the present petition i.e. the legality of his arrest, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question/issue of maintainability of this petition seeking a writ of habeas corpus, it would be apposite to consider the following judgments, which have a bearing on the issue in hand. 11. In Ram Narayan Singh (supra), the Apex Court has observed that a writ of habeas corpus is with respect to legality of detention at the time of return of rule and not to the date of institution and that if on the date of return i.e. the return of the rule, the detention is not illegal and is duly authorised by a Competent Magistrate by remand orders then the writ of habeas corpus will not lie. In this context, it would be apposite to reproduce the relevant paragraph i.e. para 4 which reads thus : "4. It has been held by this Court that 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. The material date on the facts of this case is the 10th March, when the affidavit on behalf of the Government was filed justifying the detention as a lawful one. But the position, as we have stated, is that on that date there was no order remanding the four persons to cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the date of filing of the writ and not any other date; that on the date of filing of habeas corpus, the detention of the petitioner was in district jail and therefore, the legality of his earlier detention cannot be considered; and that a writ of habeas corpus cannot be granted when the person is jailed and is in judicial custody. Para 4 of this judgment, being relevant, is reproduced herein-under : "4. These two grounds relate exclusively to the legality of the initial detention of the petitioner in the District Jail, Darjeeling. We think it unnecessary to decide them. It is now welt settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus proceeding may be examined is the 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, (1966) 2 SCR 427: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner in the Central Jail, Visakhapatnam is legal or not. Even if we assume that grounds A and B are well founded and there was infirmity in the detention of the petitioner in the District Jail, Dar- jeeling, that cannot invalidate the subsequent detention of the petitioner in the Central Jail, Visakhapatnam. See para 7 of the judgment of this Court in B.R. Rao (supra). The legality of the detention of the petitioner in the Central Jail, Visakhapatnam would have to be judged on its own merits. We, therefore, consider it unnecessary to embark on a discussion of grounds A and B and decline to decide them." 14. In Sanjay Dutt v. State 1994(5) SCC 410, the Apex Court in para 48 observed as under : "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. (See Naranjan Singh Nathawan v. State of Punjab, [1952] SCR 395; Ram Narayan Singh v. The State of Delhi, [1953] SCR 652 and A.K. Gopalan v. Government of India, [1966] 2 SCR 427 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody is valid in law." (emphasis supplied) 16 Reliance was also placed by Mr. Venegavkar on the judgment of the Apex Court in Saurabh Kumar v. Jailor, Koneila Jail & Anr. 2014 (13) SCC 436. It was the petitioner's case, that he was detained by the police, without any lawful justification, whatsoever and hence, his detention was illegal. Whereas, according to the police, the petitioner was arrested on 30th June 2013 and produced before the Additional Chief Judicial Magistrate, Dalsingsarai, Samastipur on 1st July 2013, who remanded him to judicial custody by an order dated 1st July 2013 and thereafter, from time to time, by the Court concerned. In the meantime, charge-sheet was filed against the petitioner on 27th August 2013 followed by a subsequent charge-sheet filed against the remaining accused persons on 3rd December 2013. On 19th December 2013, the Magistrate took cognizance of the offences punishable under Sections 147, 148, 149, 323, 447, 504, 379 and 386 of the Penal Code read with Section 27 of the Arms Act against the petitioner therein and others. In the facts as aforestated, the Apex Court in paras 21, 22 and 23 observed as under : "21. Two things are eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Suffice it to say that the petitioner is free to make an application for the grant of bail to the court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously." (emphasis supplied) It is pertinent to note that the Apex Court despite coming to the conclusion that the order passed by Magistrate was mechanical, still refused to issue writ of habeas corpus, as is evident from para 23 aforesaid. 17. The Apex Court in Gautam Navlakha v. National Investigation Agency 2021 SCC OnLine SC 382 in para 67 examined the question "whether a writ of habeas corpus lies against an order of remand under Section 167 Cr.P.C." Accordingly, the Apex Court in para 71 of its judgment, held as under : "71. Thus, we would hold as follows : If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie." 18. In the present case, it cannot be said that the reman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenge to a remand order passed in exercise of a judicial function by a Magistrate. ...................." "88. We shall first consider the maintainability of the writ petition filed. A writ of Habeas Corpus was moved questioning the arrest made. When it was taken up for hearing on a mentioning, the next day by the Court, the appellant was duly produced before the learned Principal Sessions Judge in compliance with Section 19 of the PMLA, 2002. The custody thus becomes judicial as he was duly forwarded by the respondents. Therefore, even on the date of hearing before the High Court there was no cause for filing the Writ Petition being HCP No. 1021 of 2023. Added to that, an order of remand was passed on 14.06.2023 itself. The two remand orders passed by the Court, as recorded in the preceding paragraphs, depict a clear application of mind. Despite additional grounds having been raised, they being an afterthought, we have no hesitation in holding that the only remedy open to the appellant is to approach the appropriate Court under the Statute. This was obviously not done. We may also note that the appellant was very conscious about his rights and that is the reason why, by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, then the writ of habeas corpus cannot be entertained, ofcourse, subject to certain exceptions as spelt out in the judgments aforesaid. As noted by us, admittedly, none of the grounds i.e. non-handing over of a copy of the grounds of arrest, illegality of petitioner's arrest, non-production before the competent court within 24 hours, were ever raised, at the time of the 1st or 2nd remand of the petitioner. Both the remand orders i.e. dated 2nd September 2023 and 11th September 2023 are detailed reasoned remand orders, and do not show that any arguments were advanced by the learned counsel for the petitioner, at the first available opportunity with respect to illegality of arrest, non-handing over of the copy of the grounds of arrest or non-production within 24 hours before the competent Court. The case in hand, does not fall under any exception, and consequently, the relief as sought for cannot be granted. Although, Mr. Desai placed heavy reliance on Madhu Limaye (supra), to buttress his submission that it is well possible to entertain a writ of habeas corpus, if the remand orders are patently routine and appear to have been made mechanically and that if the detention in custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us, as according to Mr. Desai, the arrest and first and second remand orders itself being illegal, subsequent orders are not required to be challenged. On 6th October 2023, the petitioner was directed to amend the cause title of the petition in view of the objection raised by Mr. Venegavkar, since the petition, filed as a writ of habeas corpus, was not supported by any affidavit or statement on oath. Accordingly, amendment was carried out. On 11th October 2023, the respondent-Enforcement Directorate filed their affidavit-in-reply. On 12th October 2023, the affidavit-in-reply was placed before the Court (date of return of rule). It is not in dispute that on the returnable date i.e. 12th October 2023, the petitioner was in judicial custody of the Competent Court. It is also not in dispute that prior to the filing of the present petition and even post, several orders have been passed by the Competent Court extending judicial custody of the petitioner from time to time. 21. At this juncture, at the cost of repetition, it is pertinent to note that the submissions that the petitioner's arrest was illegal, that the grounds of arrest were not furnished to him; and that his det ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
