TaxTMI 
TaxTMI 
2016 (9) TMI 265
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...., 477(A) of IPC inter alia against the said two companies, which was later investigated by Economic Offence Wing, Mumbai by renumbering the same as CR no. 89 of 2013. Charge Sheet and Supplementary Charge Sheets have been filed in the said Scheduled Offence in CR no. 89 of 2013. Vide a Provisional Attachment Order no. 05/2015 the Plant of M/s Namdhari Food International Ltd at Sri Jiwan Nagar, Dabwali Road, Tehsil: Rania, Sirsa, Haryana was also attached under PMLA. 4. The petitioner contends that despite grave and heinous offence under PMLA by these accused, no arrest was made during investigations by exercising power conferred vide Sec.19 of PMLA. Even the Special Court while taking cognizance, instead of issuing non-bailable warrants, issued only summons to these accused persons. He submits that economic offences is worse than murder and therefore Sec. 45(1)(ii) of PMLA imposes twin conditions, which are to be satisfied before release on bail or bond of any person accused of offence under PMLA, and which are similar to those imposed under NDPS Act, TADA, POTA, MCOCCA etc. Consequently, according to him the application of Sec. 45 and Sec.19 of PMLA is not governed in any manner ....
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....We are giving detailed reasons for arriving at this conclusion. 8. We have carefully considered the submissions and the relevant statutory provisions. We find no substance in the submission of the Petitioner that even at post cognizance stage, any person already arraigned as an accused of offense under Sections 3 read with section 4 of PMLA, can be arrested under Section 19 of PMLA. We are also not impressed by the argument that when a person, who is arraigned as accused in the Complaint for trying him for an offence under Section 3 read with Section 4 of PMLA, appears before the Special Court for PMLA pursuant to issuance of process vide summons or warrant, any consideration of his application for furnishing bail or bond by such person, whether interim or final, would be necessarily governed by the rigors imposed under Section 45(1)(ii) of the PMLA, read with section 65 and 71 of PMLA. We find no merit in his submission that section 45(1)(ii) would override the provisions relating to bails and bonds contained in the Code in Section 88 and section 167(2) of the Code, if it relates to person accused of Scheduled Offence under Part A of the Schedule to PMLA (as amended). We also fin....
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....Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: The application of section 45(1) is therefore to be read in the context of section 19(3) of PMLA in respect of an arrested person brought in custody before Court. Second proviso to section 45(1) creates a bar on taking cognizance except upon a complaint in writing by an authorised officer. This insertion of further bar by way of a proviso instead of creating a separate independent section, clearly presupposes consideration of application for release on bail or bond under section 45 of only such a person, who is already arrested and is in custody at a stage prior to stage of taking cognizance upon filing of a complaint. 10. Section 65 of PMLA stipulates that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of PMLA, to arrest, search and seizure, attachment, confiscation, investigation, pros....
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....e ........". The requirement of reasonable grounds for belief in the guilt of the accused to refuse bail is more stringent and, therefore, more beneficial to the accused than the requirement of reasonable grounds for the belief that he is not guilty of the offence under Section 37 of the NDPS Act. Under Section 437 CrPC the burden is on the prosecution to show the existence of reasonable grounds for believing that the accused is guilty while under Section 37 of the Act the burden is on the accused to show the existence of reasonable grounds for the belief that he is not guilty of the offence. In the first case, the presumption of innocence in favour of the accused is displaced only on the prosecution showing the existence of reasonable grounds to believe that the accused is guilty while under the NDPS Act it is the accused who has to show that there are reasonable grounds for believing that he is not guilty. 12. The limitation on the power to release on bail in Section 437 CrPC is in the nature of a restriction on that power, if reasonable grounds exist for the belief that the accused is guilty. On the other hand, the limitation on this power in Section 37 of the NDPS Act is in t....
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....or further appearances before the Court, any consideration of his application for furnishing such bond, would be necessarily governed by section 88 of the CrPC read with section 65 of PMLA. Section 88 of the CrPC reads as follows- "88. Power to take bond for appearance.- When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial." This Section 88 (corresponding to section 91 of CrPC, 1898) would not apply qua a person whose appearance is not on his volition, but is brought in custody by the authorities as held by the Constitution Bench of the Hon'ble Supreme Court in Madhu Limaye v. Ved Murti, AIR 1971 SC 2481 wherein it was observed that- "18.........In fact Section 91 applies to a person who is present in Court and is free because it speaks of his being bound over, to appear on another day before the Court. That shows that the person must be a free agent whether to appear or not. If the person is already u....
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....n in Sanjay Chaturvedi v. State, (2006) 132 DLT 692 a judgment rendered by Hon'ble Justice A.K. Sikri, wherein the following guidelines were laid down inter alia in relation to offences those could be investigated without arrest - "4. In case of Court on its own Motion v. State through CBI (supra), this Court had issued directions for criminal Courts which are as under: Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilised society. Directions for Criminal Courts- (i) Whenever officer-in-charge of police station or investigation agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173, Cr.P.C and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest. (ii) In case th....
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....ew of the above, the Special Court was duty bound to first issue summons in absence of any reasons mentioned in section 87 of the Code or as mentioned in para 53 of the aforesaid binding precedent of a three judge Bench of Hon'ble Supreme Court. It is not necessary to arrest every person during investigations under PMLA. There is no reason to incarcerate such persons in custody after taking cognizance on complaint filed against them, if they were not arrested by the investigating agency though available during investigation. 16. At post cognizance stage, any person already arraigned as an accused of offence under Sections 3 read with section 4 of PMLA, cannot be arrested under Section 19 of PMLA. Such person can be arrested only upon execution of warrant if issued by the Court taking cognizance. After taking cognizance, any arrest by an authority under section 19 would be illegal, as the Court takes charge of the matter and any arrest thereafter cannot be without obtaining warrant from the Court. Therefore, we do not find merits in the arguments advanced by the petitioner in this behalf. 17. We therefore have no hesitation in holding that if any person was neither arrested during....