TaxTMI 
TaxTMI 
2013 (2) TMI 792
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....tor for the State, the learned Judge of the said Court has extended the custody till 6th February, 2013. The applicant seeks bail on the ground that he had been arrested by a person who had no authority to effect arrest and that the procedure prescribed under the law had not been followed resulting in violation of his rights under Articles 21 and 22 of the Constitution. 2. It was submitted that since the arrest itself was violative of fundamental rights, applicant's detention in custody is thoroughly unwarranted. It was also submitted that the applicant's detention in custody is not warranted since the applicant is involved in an offence covered in part B of the Schedule to the Act and provisions of Section 45 of the Act, by implication do not warrant denial of bail to such person. 3. The application was opposed by the Enforcement Directorate on various grounds. It was submitted that in the present crime, the applicant was involved in cheating more than 5000 persons and the amount involved is more than Rs. 500 crores. It was also stated that total 42 F.I.Rs have been filed with police authorities at various places in various States, for the offence of cheating and criminal co....
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....appointed under sub section (1) of Section 49 of the Act. 6. Learned counsel next submitted that by notification dated 13th September, 2005, the Central Government appointed with effect from 1st July, 2005 the Assistant Director, holding the office immediately before the said date under The Foreign Exchange Management Act, 1999 (for short called as, "FEMA" as the "Assistant Director" for the purpose of this Act. Learned counsel for the applicant submitted that the officer who effected arrest is not shown to have been the Assistant Director under FEMA and therefore, the Officer who effected arrest was not one who could be said to be appointed under the Notification dated 13th September, 2005. 7. It is pointed out that there is notification dated 21st April, 2010, issued by the Ministry of Finance(Department of Revenue), in the exercise of powers conferred under sub section (1) of Section 49 the Act. By this notification, the Central Government appointed Enforcement Officers in the Directorate of Enforcement, appointed under Section 36(2) of FEMA, to be the Assistant Director for the purpose of the Act. Section 36 of the FEMA reads as under:- "36. Directorate of Enforc....
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....ction 19 of the Act, has to be exercised in accordance with the Rules. Reliance was placed on the definition of "Arresting Officer" under the Prevention of Money Laundering (The Forms and The Manner of Forwarding a Copy of Order of Arrest of a Person Along with The Material to The Adjudicating Authority and Its Period Of Retention) Rules, 2005 (hereinafter referred to as the "Rules"). The expression "Arresting Officer" has been defined under Clause (c) of Rule 2(1) as under:- "(c) Arresting Officer" means the Director, Deputy Director, Assistant Director or any other officer, authorized in this behalf by the Central Government by general or special order to exercise the power to arrest any person under sub- section (1) of section 19 of the Act;" 11. This has to be contrasted with the expression used in sub-Section (1) of Section 19 of the Act, which may be reproduced for ready reference as under. "19. Power to arrest - (1) If the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession reason to believe (the reason for such ....
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....may be that as far as Directors, Deputy Directors, or Assistant Directors are concerned, no authorisation of the Central Government is required, and while any other officer could also be authorised by the Central Government, if such other officer has to be authorised, a notification by the Central Government would be required. Thus, there is no substance in the contention that the Assistant Director who effected arrest lacked the authority to arrest. Therefore, there is no violation of any procedural safeguards which the applicant had and he cannot be said to have suffered by any eclipse of his rights by not following the procedure established by law in effecting his arrest. 15. The observations of the Supreme Court in Shri. Gurbaksh Singh Sibbia and ors -vs- State of Punjab, reported in (1980) 2 SCC 565, do not help the applicant since there is no breach of procedural safeguards provided in the Act. Since there is no violation of Articles 21 and 22 of the Constitution of India, in effecting the arrest of the applicant, even judgment of this Court in Suaibo Ibow Casamma -vs- Union of India, reported in 1995 (80) E. L.T. 762 (Bom.), does not help the applicant. 16. Learned Sen....
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....that since the applicant is not a person who is alleged to have committed offence under part A of the Schedule, restrictions under Section 45 would not apply and therefore, the case of the applicant would have to be dealt with as an ordinary application for bail without any additional limitations. There can be no doubt about this proposition, since offences which the applicant is alleged to have committed are under part B of the schedule to the Act. 19. Learned counsel for the applicant submitted that applicant has been arrested on 14th December, 2012 and is in judicial custody now. He seems to have been admitted in hospital for treatment and it is stated that there is absolutely no interrogation made for last several days justifying further detention of the applicant in custody. Therefore, relying on the observations of the Supreme Court in para 16 and 18 of the judgment in Gurcharan Singh and ors -vs- State (Delhi Administration) reported in (1978) 1 SCC 118, learned counsel submitted that the applicant may be admitted to bail. 20. Learned Advocate General pointed out that the Assistant Director in his affidavit-in-reply, has stated about the gravity of offence for which, a....