TMI Blog2024 (1) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... there is absolutely no doubt that at the time of arrest of the petitioner i.e., on 09.06.2023, the law laid down in Moin Akhtar Qureshi was holding the field, which position continued till the pronouncement of decision in PANKAJ BANSAL VERSUS UNION OF INDIA ORS. [ 2023 (10) TMI 175 - SUPREME COURT] whereby Moin Akhtar Qureshi and CHHAGAN CHANDRAKANT BHUJBAL, MS. ANJALI DAMANIYA, VERSUS UNION OF INDIA, [ 2016 (12) TMI 1014 - BOMBAY HIGH COURT] were specifically overruled. Meaning thereby that at the time of petitioner s arrest, oral communication of the grounds of arrest was proper compliance of the provisions of Section 19(1) of the PMLA. The above position is also fortified by the observation of the Supreme Court in RAM KISHOR ARORA VERSUS DIRECTORATE OF ENFORCEMENT [ 2023 (12) TMI 785 - SUPREME COURT] wherein the Court held that non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. Now reverting to the factual conundrum which still looms large in the present case and needs to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enty-four hours of his arrest by the ED for seeking his remand. Concerned officer did not forward a copy of the arrest order along with the material in his possession immediately to the Adjudicating Authority in terms of the mandate of sub-section (2) of Section 19 of the PMLA - HELD THAT:- The petitioner was arrested on 09.06.2023 at 10:25 pm, which happened to be a Friday night. There is substance in the contention of Mr. Hossain that on Saturday i.e. 10.06.2023 and Sunday i.e. 11.06.2023 the office of the Adjudicating Authority remained closed, therefore, copy of arrest order along with other relevant material was immediately forwarded on 12.06.2023. It is trite law that where a period is prescribed for the performance of an act in a Court or office, and that period expired on a holiday, then according to Section 10 of the General Clauses Act, 1897, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. The obligation flowing from the expression immediately occurring in Section 19(2) of the PMLA has to be given meaning depending upon the context and the manner in which arrest order along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2019 registered by the Directorate of Enforcement. 4. The brief facts which are relevant for disposing of the aforesaid two cases are as under: i. The petitioner is a businessman and was the ex-promoter, Vice Chairman and Managing Director of M/s Bhushan Steel Ltd. (hereinafter referred to as BSL ). However, pursuant to proceedings initiated under the Insolvency and Bankruptcy Code, 2016, BSL was acquired by Tata Steel in terms of the order dated 15.05.2018 passed by the National Company Law Tribunal. ii. Before BSL was taken over by Tata Steel, the Ministry of Corporate Affairs in exercise of its powers under Section 212(1)(c) of the Companies Act, 2013 vide order dated 03.05.2016 ordered investigation into the affairs of BSL by the Serious Fraud Investigation Officer (hereinafter referred to as SFIO ). The SFIO filed a complaint case under various provisions of the Companies Act, 2013 including Section 447 and under Sections 409/467/468/471 and 120B of the Indian Penal Code, 1860. iii. Thereafter, the Directorate of Enforcement registered the subject ECIR under the provisions of Prevention of Money Laundering Act, 2002 (hereinafter referred to as the PMLA ) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure; (ii) the arrest of the petitioner is in violation of Section 19(1) of the PMLA as grounds of arrest were not informed to the petitioner. Elaborating on this argument, it was submitted that the process of informing in terms of the said provision would entail providing a copy of the grounds of arrest as the accused cannot be expected to recollect from his memory a document running into numerous pages; (iii) The arrest of petitioner is also in violation of Section 19(2) of the PMLA as the copy of the arrest order along with material in possession of the Arresting Officer in terms thereof was not forwarded to the Adjudicating Authority immediately. Expanding on this argument, it was submitted that the arrest of the petitioner was made on 09.06.2023 whereas intimation to the Adjudicating Authority was given on 12.06.2023, as is borne out from the arrest intimation letter (Annexure R-4). 6. The controversy raised in the present cases revolves around the noncompliance of the mandate of Section 19 of the PMLA, therefore, the said provision is extracted below for ready reference: 19. Power of Arrest - (1) If the Director, Deputy Director, Assistant Director o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is already an exhaustive procedure contemplated under the PMLA, 2002 containing sufficient safeguards in favour of the person arrested, Section 41A of the CrPC, 1973 has no application at all. xxxx xxxx xxxx xxxx 39. To effect an arrest, an officer authorised has to assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording the reasons. The said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2), the Authorised Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub-section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he/she so chooses. In this regard, the grounds of arrest in V. Senthil Balaji (supra) are placed on record and we find that the same run into as many as six pages. The grounds of arrest recorded in the case on hand in relation to Pankaj Bansal and Basant Bansal have not been produced before this Court, but it was contended that they were produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be well-nigh impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pankaj Bansal (supra) is prospective in its application because the Supreme Court has expressly held that the obligation of furnishing the grounds of arrest shall become effective henceforth . On the contrary, it was argued on behalf of the petitioner that the Supreme Court has only clarified the position of the existing law that is, Section 19 of the PMLA and has not formulated any new law, therefore, the said judgment is retrospective in its application. 12. The question whether the directions passed in Pankaj Bansal (supra)will apply prospectively or not, came up for consideration before the Supreme Court in Ram Kishor Arora vs. Directorate of Enforcement 2023 SCC OnLine SC 1682 [Date of Decision 15th December, 2023]. The Court held that the use of expression henceforth in Pankaj Bansal (supra) implied that the requirement of furnishing grounds of arrest in writing to the arrested person as soon as after his arrest was not mandatory or obligatory till the date of pronouncement of the said judgment and accordingly, non-furnishing of grounds of arrest in writing till the said date could neither be held to be illegal nor the action of the concerned officer in not furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possible without avoidable delay or within reasonable convenient or reasonably requisite period of time. The Court also observed that the reasonably convenient or reasonably requisite time to inform the arrestee about the grounds of his arrest would be twenty-four hours of the arrest. 14. Elaborating further, the Court observed that it would be sufficient compliance of not only Section 19 of PMLA but also of Article 22(1) of the Constitution of India, if the person arrested is informed or made aware about the grounds of arrest at the time of his arrest and is furnished a written communication about the grounds of arrest as soon as may be i.e. as early as possible without avoidable delay and within reasonably convenient and reasonably requisite period of time, which would be twenty-four hours of the arrest. The relevant part of the decision reads as under: 21. In view of the above, the expression as soon as may be contained in Section 19 of PMLA is required to be construed as- as early as possible without avoidable delay or within reasonably convenient or reasonably requisite period of time. Since by way of safeguard a duty is cast upon the concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner submits that the case of the petitioner is squarely covered by the decision of Ram Kishor Arora (supra). Elaborating on his argument, he submits that in the said case the appellant therein was undisputedly informed about the grounds of arrest and he had also put his signatures as an acknowledgement of having been informed the grounds of arrest, but in the present case the petitioner has disputed the very existence of ground of arrest and arrest order / reasons to believe at the time of his arrest right from the very beginning as is evident from the remand order dated 10.06.2023. 18. He submits that the Arrest Memo is the only document which was supplied to the petitioner as the same finds reference in the panchnama since the arrest was made during the search proceedings. There is no reference to the Arrest Order and the ground of arrest in the panchnama. According to Mr. Pahwa, had the Arrest Order and ground of arrest been shown or provided to the petitioner at the time of his arrest, it would have been so indicated in the Panchnama dated 09.06.2023. 19. He further submits that the Arrest Order was executed at Pravartan Bhawan, Dr. A.P.J Abdul K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e attention of the Court to para 7 of the remand order dated 10.06.2023, he submits that the learned Special Judge had perused the case diary before recording his findings, therefore, the findings recorded in the said order are premised on material available in the case dairy, which includes the ground of arrest , therefore, the said findings cannot be faulted with. The relevant part of the order dated 10.06.2023 reads as under: 7. I have considered the submissions advanced by both the sides as well as gone through the case diary produced by the ED. 8. . The contention of the Ld. Counsel for the accused that accused was not informed about the grounds of his arrest is contrary to the records. Accused has been provided with the grounds of his arrest and same is duly signed by him and countersigned by two independent witnesses. 25. He submits that the petitioner sought rectification of the order dated 10.06.2023 and thereby prayed to replace the word provided with word shown but no rectification was sought of any other finding which establishes that the ground of arrest were shown to the petitioner and he duly signed the same as a token thereof. 26. Inviti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India (DB) 2017 SCC OnLine Del 12108 which was holding the field when the petitioner was arrested on 09.06.2023. He submits that in terms of Moin Akhtar Qureshi (supra), oral communication of ground of arrest was proper compliance of the mandate of Section 19(1) of the PMLA. 32. He submits that the contents of ground of arrest are the same as mentioned in the remand application moved by the respondent before the learned Special Judge on 10.06.2023, therefore, the respondent had disclosed the grounds of arrest to petitioner at the earliest. Accordingly, there was no violation of Section 19(1) of the PMLA. Reliance in this regard has been placed on the judgment of Moin Akhtar Qureshi (supra) and a coordinate bench of this Court in Ram Kishore Arora vs. Directorate of Enforcement W.P. (Crl) 2048/2023. 33. In rejoinder, Mr. Pahwa submits that a Division Bench of this Court in Rajbhushan Omprakash Dixit vs. Union of India (2018) SCC Online Del 7281 had doubted the correctness of the judgment in Moin Akhtar Qureshi (supra) and the issue apropos the requirement of furnishing a copy of the grounds of arrest was referred to the larger Bench of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jbhushan Omprakash Dixit (supra) . 39. Before proceeding further, apt it would be to refer to the law laid down by this Court in Moin Akhtar Qureshi (supra), wherein it was observed as under: 65. On consideration of the aforesaid decision relied upon by learned counsels, the position, in law, which emerges is as follows: i. The procedural safeguards in clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also, to know exactly what the accusation against him is so that he can exercise the second right, namely, of consulting a legal practitioner of his choice and to be defended by him. Clause (2) of Article 22 provides the material safeguard that the arrested person must be produced before a Magistrate within 24 hours of such arrest so that an independent authority exercising judicial powers may, without delay, apply its mind to his case. See Madhu Limaye (Supra). ii. Neither Section 19(1) of PMLA nor the definition of the expression order as given in Sub-Clause (h) of Rule 2, of the PMLA Arrest Rules provide that the gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tedly, served upon the petitioner on 26.08.2017 76. Thus, the petitioner, in any event, became aware of the grounds of his arrest when he and his legal practitioner were provided with a copy of the application under Section 167 Cr.P.C. read with Section 65 PMLA dated 26.08.2017 to seek his ED custody remand. ... (emphasis supplied) 40. Since, in Moin Akhtar Qureshi (supra), a specific reference was made to the decision of the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal vs. UOI 2016 SCC Online Bombay 9338, therefore, it is apposite to refer to the relevant paragraph from the said decision also, which reads as under:- 190. The provision of Section 19(1) also does not state that the grounds of arrest are to be informed to the person arrested, immediately. The use of the word in the said provision as soon as may be , makes it clear that grounds of arrest are not to be to be supplied at the time of arrest itself or immediately on arrest, but as soon as may be. If it was the intention of the Legislature that in the Arrest Order itself the grounds of arrest should be stated, that too in writing, the Legislature would have made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here that the aforesaid question now stands settled by the decision of Supreme Court in Pankaj Bansal (supra) but the directions contained therein making it mandatory for the arresting officer to communicate the grounds of arrest to the arrestee in writing, are prospective in nature. 43. The issue whether the law laid down in Moin Akhtar Qureshi (supra) or in Rajbhushan Omprakash Dixit (supra) would be applicable, need not detain this Court any longer, in as much as, it is trite law that pendency of a reference to a larger bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision is rendered in the reference. Till the time, the decisions cited at the bar are not modified or altered in any way, they continue to hold the field . [Ashok Sadarangani vs. Union of India:(2012) 11 SCC 321] 44. This position has also been reiterated by the Hon ble Supreme Court in its recent decision in Union Territory of Ladakh Ors. vs. Jammu and Kashmir National Conference Anr. 2023 SCC OnLine SC 1140. The relevant para of the said judgment reads as under: 35. We are seeing before us judgments and orders by High Courts not deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to ground of arrest and other contemporaneous documents is imperative. 48. Clearly, the document ground of arrest bears the signatures of the petitioner at two points. One, immediately after the conclusion of narration of grounds of arrest. Secondly, below the endorsement made in terms of the judgment of the Supreme Court in D.K. Basu (supra) to the effect that the petitioner has been intimated about his rights as an arrestee and his wife has been informed about his arrest physically at 22.28 on 09.06.2023. Therefore, there is no substance in Mr. Pahwa s contention that the signature of the petitioner on the ground of arrest is only a token of acknowledgement of the compliance of mandate of D.K. Basu (supra). 49. To be noted that Mr. Pahwa did not deny the signatures of the petitioner on the ground of arrest . However, his submission was that since each page of the ground of arrest does not contain the signature of the petitioner, it raises a doubt about its authenticity. A perusal of the ground of arrest reveals that it runs into three pages and there appears to be continuity of matter and flow of the typed contents from one page to another. Besides that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner apart from affixing his signature has also appended the date 9/6/23 , and the time 22:28 at which his wife was informed about his arrest, in his own handwriting, therefore, the said document cannot be said to be ante-dated or ante-timed. In so far as the place of arrest is concerned, it is evident from the Arrest Memo that the place of arrest of the petitioner is shown as his residence viz., W-29, Greater Kailash-II, New Delhi and this document was available with the petitioner from the date of arrest itself but there is no whisper either in the petition or in the bail application that place of arrest is wrongly recorded nor any such objection seems to have been taken before the learned Special Judge. The search panchnama also reveals that the arrest was affected at the residence of the petitioner in the presence of two independent witnesses. The wife of the petitioner has also signed the panchnama. Merely because there is some typographical error in the Arrest Order with regard to the place of arrest, the same will not enure to the benefit of the petitioner and vitiate his arrest. 54. Furthermore, the source of ground of arrest and other contemporaneous docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vanced by both the sides as well as gone through the case diary produced by the ED. 8. . The contention of the Ld. Counsel for the accused that accused was not informed about the grounds of his arrest is contrary to the records. Accused has been provided with the grounds of his arrest and same is duly signed by him and countersigned by two independent witnesses . (emphasis supplied) (iii) Subsequently, an application seeking modification/rectification of the order dated 10.06.2023 was filed by the petitioner alleging that in paragraph 8 of the said order inadvertently the words provided with have occurred, instead of the word shown , as correctly recorded in the last sentence of paragraph 13 of the remand application. Accordingly, a prayer for replacing the word provided with with word shown was made. The relevant paragraph and prayer clause of the rectification application read as under: 2. In the last sentence of Paragraph 8 of the aforesaid Order dated 10.06.2023, inadvertently the words provided with have occurred, instead of the word shown , as correctly recorded in the last sentence of Paragraph 13 of the Remand Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arrest but the same were never supplied. Paragraph 8 of the petition reads as under: 8. Therefore, it is the specific case of the Petitioner that no grounds of arrest has been communicated or were explained nor any explanation given for his arrest. Moreover, Petitioner was forced to signsome alleged documents purportedly the grounds of arrestand same was never supplied with the grounds of arrest. (emphasis supplied) Evidently, there is no categorical denial of the fact that the petitioner had signed the grounds of arrest, rather the stand taken by the petitioner goes to show that he had signed the grounds of arrest but a physical copy of the same was never supplied to him. This stand justifies the findings recorded in the remand order dated 10.06.2023 which were not questioned by the petitioner, and rightly so because the petitioner never had a doubt that he had signed the ground of arrest . Therefore, the contention now sought to be raised that the petitioner was never shown the ground of arrest is contrary to the record. 59. The issue deserves to be considered from yet another angle. The respondent/ED had moved an application Section 167 Cr.P.C. seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
