2023 (7) TMI 389 - HC - Money Laundering

Habeas Corpus Petition Maintainable Post-Remand for Illegality or Lack of Jurisdiction

The court held that the Habeas Corpus Petition was maintainable even after a judicial remand order if there were absolute illegality, total ... Maintainability of habeas corpus after judicial remand - power of Enforcement Directorate to seek police custody under the Prevention of Money Laundering Act - application of Section 19 PMLA as self-contained arrest regime with Article 22 safeguards - exclusion of hospitalization period from computation of initial 15 days of custody under Section 167 CrPCMaintainability of habeas corpus after judicial remand - Whether the writ of habeas corpus is maintainable despite a judicial remand having been passed - HELD THAT: - The Court held that a habeas corpus petition is ordinarily not maintainable once a competent court has passed a remand order, because remand is a judicial act; however, an exception exists where the remand/order is shown to be vitiated by absolute illegality, lack of jurisdiction or total non-application of mind. Applying those principles to the facts, the majority concluded that the petition fell within the exceptional category and that the High Court could examine legality of detention despite the remand. The Court therefore entertained and allowed the habeas corpus petition on the grounds indicated elsewhere in the order. The analysis relied on and distinguished precedents which establish the general rule and the narrow exception for patent illegality or mechanical remand.Habeas corpus petition is maintainable in the facts and circumstances of this case and is allowed.Power of Enforcement Directorate to seek police custody under the Prevention of Money Laundering Act - application of Section 19 PMLA as self-contained arrest regime with Article 22 safeguards - Whether the Enforcement Directorate is entitled to seek police custody (custody for custodial interrogation) under the PMLA or otherwise under Section 167 CrPC - HELD THAT: - The majority held that officers empowered to arrest under Section 19 PMLA are not entrusted by the statute with the powers of an Officer-in-Charge of a police station necessary to seek and hold police custody under Section 167 CrPC. While Section 19 provides for arrest and contains safeguards (including informing grounds and forwarding material to the adjudicating authority), Parliament did not confer on ED officers the statutory status of Station House Officer as is done under some other special enactments. Accordingly, custody other than judicial custody could not be lawfully conferred on ED beyond the statutory framework; as a consequence the remand-cum-order placing the detenue in ED/police custody was regarded as without authority. (The Court observed the special PMLA arrest regime and Article 22 safeguards but determined parliamentary omission to confer station-house functions to ED officers precludes police custody being granted to ED.)Enforcement Directorate is not entrusted with powers to seek police custody under the Prevention of Money Laundering Act, 2002; the custody order in that form was without authority.Exclusion of hospitalization period from computation of initial 15 days of custody under Section 167 CrPC - Whether the period during which the detenue underwent hospital treatment should be excluded from computation of the initial 15-day period for custodial interrogation/custody - HELD THAT: - The majority treated this contention as unnecessary to decide finally for the disposal of the habeas corpus petition because ED was held not entitled to police custody; accordingly the miscellaneous petition seeking exclusion of the hospitalisation period was dismissed. The Court noted the jurisprudence on the 15 day rule and on exceptional circumstances (including the Supreme Court's recent decisions), and recorded that exclusion was not required to be granted in the circumstances of this case once ED custody was held impermissible; therefore the separate prayer for exclusion was refused.Miscellaneous petition seeking exclusion of the hospitalization period is dismissed.Final Conclusion: The writ of habeas corpus was allowed: the High Court held that, on the facts before it, habeas corpus was maintainable and directed that the detenue be set at liberty forthwith; the Court further held that the Enforcement Directorate is not empowered under the PMLA to seek police custody and dismissed the petition seeking exclusion of the period of hospitalisation from the initial custody computation. Issues Involved:1. Maintainability of Habeas Corpus Petition.2. Compliance with Section 41A of CrPC.3. Validity of Arrest and Detention under PMLA.4. Exclusion of Time for Custodial Interrogation.5. Power of Enforcement Directorate (ED) to Seek Custody.Summary:1. Maintainability of Habeas Corpus Petition:The court examined whether the Habeas Corpus Petition is maintainable after a judicial remand order. The petitioner argued that the remand was illegal and without application of mind, citing violations of procedural safeguards under Article 22 of the Constitution. The respondents contended that once a judicial remand is ordered, the Habeas Corpus Petition is not maintainable. The court concluded that Habeas Corpus is maintainable in cases of absolute illegality, total non-application of mind, or lack of jurisdiction, even after a judicial remand order.2. Compliance with Section 41A of CrPC:The petitioner argued that the arrest was illegal due to non-compliance with Section 41A of CrPC, which mandates notice before arrest for offenses punishable with imprisonment up to seven years. The respondents contended that PMLA is a special enactment with its own provisions for arrest, which overrides the CrPC. The court held that the principles underlying Sections 41 and 41A CrPC should be read into Section 19 of PMLA, which provides adequate safeguards and a higher standard for arrest. The court found that the arrest was necessary and complied with the requirements under Section 41(1)(b) of CrPC.3. Validity of Arrest and Detention under PMLA:The petitioner alleged that the grounds of arrest were not informed to the detenu, violating Article 22 of the Constitution. The respondents provided evidence of informing the detenu and his relatives through SMS and email. The court found that there was due compliance with Article 22 and the provisions of CrPC relating to arrest. The court also noted that the remand order by the Principal Sessions Judge showed application of mind and was not mechanical.4. Exclusion of Time for Custodial Interrogation:The court examined whether the period spent in the hospital should be excluded from the initial 15 days of judicial custody for custodial interrogation. The petitioner argued that the first 15 days rule is inviolable, while the respondents cited a recent Supreme Court decision allowing exclusion of time in exceptional circumstances. The court held that the time spent in the hospital should be excluded, allowing the Enforcement Directorate to seek custodial interrogation once the detenu is medically fit.5. Power of Enforcement Directorate (ED) to Seek Custody:The petitioner contended that ED officers are not police officers and cannot seek custody under Section 167 CrPC. The respondents argued that ED is entitled to seek custody for effective investigation. The court held that Section 65 of PMLA makes the provisions of CrPC relating to investigation applicable to PMLA, allowing ED to seek custody. The court found that the respondents are entitled to custodial interrogation and the period spent in the hospital should be excluded from the initial 15 days.Conclusion:1. The Habeas Corpus Petition is maintainable.2. The Enforcement Directorate is not entrusted with the powers to seek police custody under PMLA.3. The miscellaneous petition seeking exclusion of the period is dismissed.4. The detenu is ordered to be set at liberty forthwith.