TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 1341
X X X X Extracts X X X X
X X X X Extracts X X X X
....f habeas corpus wherein vires of Section 45 of the PMLA was challenged alleging lack of jurisdiction of respondent No.2 under this Act for effective arrest under section 19, due to absence of proper appointment under section 49 and authorization by the Central Government and alleging illegal arrest for non-communication of grounds of arrest to the petitioner. The same was dismissed on all counts by judgment dated 16.01.2015 and in review petition, vide order dated 04.03.2015, it was clarified that findings in that judgment will not come in the way of deciding bail application or any other application moved on behalf of the petitioner. Thereafter, bail application preferred by the petitioner was dismissed by a single Judge of this Court vide order dated 31.3.2015 and Special Leave Petition against this order was dismissed in limine vide order dated 12.5.2015. However, petitioner was granted liberty to apply for bail by appropriate application as envisaged under the provision of the Code of Criminal Procedure, 1973 after expiry of six months. Special Leave Petition against judgment dated 16.01.2015 in Special Criminal Application (Direction) No.4496 of 2014 was also preferred by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with the bank by producing fake and fabricated bills of entry. On the basis of this information, a regular case was registered by way of this ECIR dated 17.4.2014 and investigation was taken up under the provisions of PMLA by Enforcement Directorate. Before arresting the petitioner under section 19 of PMLA on 18.7.2014 after investigation, a complaint bearing No.03/2014 was lodged against 79 accused persons in this ECIR under PMLA. Petitioner was not amongst those 79 accused. Thereafter, petitioner was arrested on 01.9.2014 in a supplementary complaint No.04/2014 which was filed on 29.10.2014 before Designated Special Court under PMLA at Ahmedabad, wherein petitioner is one among 10 accused named therein. Cognizance was taken by the trial Court in said supplementary complaint. 4. While arguing for the petitioner, learned senior counsel Mr.Vikram Chaudhary has submitted that there was total noncompliance with mandatory provisions of section 155 read with section 4 (2) of Cr.P.C. and section 65 of PMLA. Investigations were commenced without seeking warrants from the Court. Offence under PMLA is "non-cognizable" offence notwithstanding misleading heading of section 45 pursuant to its....
X X X X Extracts X X X X
X X X X Extracts X X X X
....encing investigation nor any warrant obtained for petitioner's arrest, for non-compliance of section 155 of Cr.P.C., arrest of the petitioner and keeping him in custody was illegal warranting issuance of a writ of habeas corpus. He has also put reliance on a decision of the Supreme Court in Om Prakash v. Union of India reported in (2011) 14 SCC 1 in relation to investigation of noncognizable offence under Central Excise & Customs Act who were held to have no authority to arrest without warrant in view of section 155 of Cr.P.C. Learned counsel Mr.Chaudhary has submitted that respondents have not followed other mandatory provisions of sections 167 (1) and 172 of Cr.P.C. Neither any duly designated volume of case diary showing day-to-day progress as contemplated in section 172 (1B) is being maintained nor was the same produced before the Court when remand was sought although it was mandatory under section 161 (1) of Cr.P.C. It has been submitted that if the offence is held to be cognizable, it was mandatory to follow the provisions of section 157 apart from sections 167 (I1) and 172 of Cr.P.C. He has referred to a judgment of Constitution Bench of Supreme Court in Lalita Kumari v. Gov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s a fundamental right under Part III of the Constitution of India. Provisions of section 50 of PMLA cannot be construed in such a manner which abrogates the fundamental rights conferred upon a citizen. According to him, statements obtained after taking into custody of an accused are irrelevant as per section 24 of the Evidence Act. While relying upon Constitution Bench decision in Haricharan Kurmi v. State of Bihar reported in AIR 1964 SC 1184, it has been submitted that in absence of any evidence against the petitioner, the case against him cannot be sustained merely on the basis of statement of co-accused or the petitioner. 6. Learned counsel has further pointed out that the petitioner is not amongst the accused named in the FIR or the chargesheet in the said scheduled offence investigated by the Crime Branch. He is also not amongst the directors or promoters or a person controlling the affairs of any such Indian companies which were indulging in scheduled offence of submitting fake bills of entry and making fraudulent remittances on that basis. Merely with the aid of inadmissible statements, petitioner cannot be deprived of his liberty guaranteed by the Constitution of India. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the way of the petitioner in any pending petition or any petition that may be filed and cannot in any way be seen as granting liberty or modifying, revising or watering down the earlier finding recorded by this Court. 11. Learned Assistant Solicitor General has also referred to section 45 of PMLA and has submitted that the offence for which the petitioner has been booked was cognizable and non-bailable and as such he cannot be released on bail on his own bonds where the Public Prosecutor opposes such bail application or petition. According to him, all relevant provisions have been followed while initiating the process against the petitioner and under this circumstance, the present petition was liable to be dismissed. 12. We have heard the arguments of both sides and we have also gone through the judgment dated 16.01.2015 dismissing the earlier writ petition preferred on behalf of the present petitioner. 13. Respondents raised the issue of maintainability of second habeas corpus petition on the ground of res judicata/ constructive res judicata by relying on two judgments of the Hon'ble Supreme Court in Devilal Modi v. Sales Tax Officer reported in AIR 1965 SC 1150 and in State of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ence remaining the same, it cannot be said that challenge is on new or fresh grounds...." 15. After perusing the judgment dated 16.01.2015, we find that the grounds taken in the instant petition were not taken in the earlier writ petition dismissed by this Court. We, therefore, find it appropriate to consider merits of the petition. Moreover, the objections of respondents regarding maintainability of the petition do not survive in view of specific liberty granted by the Supreme Court vide its order dated 07.07.2015 and clarification made vide order dated 31.7.2015. 16. Now we would like to take up the arguments regarding violation of Sections 154, 155, 157, 167,and 172 of Cr.P.C. as argued before us. We have seen the illustration from section 179 of the Income Tax Act in which heading of the section is ignored pursuant to amendment in this section. This illustration supports the contention raised on behalf of the petitioner that notwithstanding misleading heading, after specific amendment in 2005, offence under PMLA is non-cognizable offence. It could also be seen that in case of State of Haryana v. Bhajan Lal reported in 1992 Supp (1) SCC 335, the Hon'ble Supreme Court was pleas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ishment by law". Fundamental rights of accused are protected under Article 21 of the Constitution of India, if such procedure established by law is complied with in any investigation. 20. Therefore, irrespective of whether the offence under PMLA is held to be cognizable or non-cognizable, we find that respective procedure prescribed under the Code ought to have been followed in absence of any inconsistent provision under the PMLA concerning investigation and arrest amongst other proceedings. If the offence under PMLA is held to be cognizable, it was mandatory to comply with sections 154 & 157 apart from sections 167 (1) and 172 of the Code. If the offence under PMLA is held to be non-cognizable, it was mandatory to comply with section 155 apart from sections 167 (1) and 172 of the Code. We are unable to find any merit in the contention of learned counsel for the respondents as well as their reply that those provisions of the Code are inapplicable merely because provisions of the Code used the word "police officer" and they are officers of Enforcement Directorate. Such interpretation as proposed by the respondents would render section 165 of PMLA meaningless and thus cannot be acce....
X X X X Extracts X X X X
X X X X Extracts X X X X
....omplaint which is normally result of investigation of non-cognizable offence. Although the offence is punishable with imprisonment upto 7 years and can be cognizable as Part II of Schedule I to the Cr.P.C., however, such interpretation would set at naught the objects made in 2005. Learned counsel for the respondent has objected to the grounds raised by the petitioner regarding applicability of section 155 and other provisions of Cr.P.C. However, it appears that there is some substance in the issues raised by the petitioner and it requires deeper consideration. Even otherwise, if we go by the arguments of learned counsel for the respondent that offence under PMLA is cognizable, they have failed to show compliance of even section 157 Cr.P.C. which has been held to be mandatory by Constitution Bench of the Supreme Court in Lalita Kumari (supra). 26. Next is the point regarding admissibility of statements recorded under PMLA. All the statements of co-accused and that of petitioner himself are recorded under PMLA. In judgment in Tofan Singh (supra), it is seen that the matter has already been referred to a Larger Bench of Supreme Court albeit in respect of statements recorded under NDP....