AI Drafter 
TaxTMI 
TaxTMI 
2017 (12) TMI 289
X X X X Extracts X X X X
X X X X Extracts X X X X
....ement Act (FEMA). The petitioner's statement was recorded in those proceedings on 05.01.2016. Thereafter, the petitioner was served summons dated 05.01.2016 in respect of the case registered under PMLA vide ECIR/18/DLZO/2015/AD requiring him to appear at 4:30 p.m. on the same day for recording his statement under Section 50 of the Prevention of Money Laundering Act, 2002 (PMLA). The petitioner states that he appeared in response to the summons issued in the PMLA case between November 2016 and 16.12.2016. 3. On 16.02.2017, the CBI registered FIR RC No.224/2017 under Section 8, 9, 13(2) read with 13(1)(d) of the Prevention of Corruption Act (PC Act) and Section 120B IPC against the petitioner, unknown persons and public servants for alleged offences committed during the period 2011-2013. 4. On 15.03.2017, the ED registered another ECIR being No. ECIR/02/DLZO/2017/AD under the PMLA on the basis of the FIR registered by the CBI. The petitioner was summoned to appear before the ED on 25.08.2017, and the petitioner appeared in response to the said summons. He claims that after having been detained for the whole day, he was subsequently arrested on the same day under Section 19 of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice". (emphasis supplied) Section 19 of the PMLA reads: "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 belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order, along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ested shall be detained in custody without being informed ... ..." also point to the mandatory nature of the obligation cast by the said provision on the arresting officer, to inform the person arrested of the grounds for such arrest. 12. Mr. Handoo submits that in the facts of the present case, the petitioner was served with an arrest memo which disclosed the "section of law" under which, presumably, the petitioner was arrested as "3 r/w 4 Prevention of Money Laundering Act of 2002". By itself, the said information was wholly inadequate to enable the petitioner to brief his legal practitioner, or to enable the petitioner to effectively protect his liberty. He further submits that the petitioner was purportedly shown the grounds of arrest and his endorsement taken thereon at the time of his arrest on 25.08.2017, which reads "READ". However, the said grounds of arrest were not served on the petitioner. Similarly, on the arrest order, the signatures of the petitioner were obtained on 25.08.2017. Mr. Handoo submits that, as a matter of fact, the petitioner was not allowed to even read the grounds of arrest. In any event, merely permitting the petitioner to read the said grounds is ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th material was forwarded to the adjudicating authority in terms of section 19(2) of the Act. 16. Mr. Handoo has drawn the attention of the Court to "Prevention of Money Laundering (the form and forms 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" ("PML Arrest Rules") and, in particular, to the definition of the words "material" contained in Rule 2(g), and "Order" contained in Rule 2(h), which read as follows: "2.(1) In these rules, unless the context otherwise requires - xxx xxx xxx xxx xxx xxx xxx (g) "material" means any information or material in the possession of the Director or Deputy Director or Assistant Director or any authorised officer, as the case may be, on the basis of which he has recorded reasons under sub-section (1) of section 19 of the Act; (h) "order" means the order of arrest of a person and includes the grounds for such arrest under sub-section (1) of section 19 of the Act;" (emphasis supplied) 17. Mr. Handoo submits that for exercise of power of arrest under Section 19 of the PMLA, it is essential that the Competent Authority shoul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ot disclosing. He submits that even at the stage of moving the remand application, the petitioner was not served with the grounds of arrest. Only upon the directions of the learned Special Judge, CBI, the application to seek the petitioners remand was served upon the petitioners counsel. 21. Mr. Handoo further submits that the learned Special Judge, CBI while allowing the remand application preferred by the ED on 26.08.2017, passed the order mechanically and without application of mind, granting ED custody remand for a period of five days i.e. upto 31.08.2017. Mr. Handoo submits that the learned Special Judge, CBI further extended the ED custody remand of the petitioner on 31.08.2017 by four days i.e. till 04.09.2017 vide order dated 31.08.2017 and, on this occasion as well, the said order extending the petitioners ED custody remand was passed mechanically, without due application of mind. 22. Mr. Handoo has placed reliance on the decision of a Division Bench of the Allahabad High Court in Vimal Kishore Mehrotra v. State of U.P. & Anr., AIR 1956 All 56. The Division Bench referred to the decision of the Supreme Court in State of Bombay v. Atma Ram, AIR 1951 SC 157 (C), wherei....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e committed. We have seen that S. 7 of the Act prohibits a variety of acts. By merely learning that he has been arrested under S. 7 of the Act, the petitioner would not know what exactly he is alleged to have done. For purposes of Cl. (1) of Article 22, it is not necessary for the authorities to furnish full details of the offence. But the information should be sufficient to enable the arrested person to understand why he has been arrested. The ground to be communicated to the arrested person should be somewhat similar to the charge framed by the Court for the trial of a case. In the present case the petitioner should have been told that the charge against him is that, on the morning of 18-5-1955 near J.K. Jute Mill, Kanpur he threatened Janardan Pande in order to dissuade him from going to work." (emphasis supplied) 23. In para 42 and 43, the Division Bench observed: "42. It is the fundamental right of every person that on being arrested he must be "informed, as soon as may be, of the grounds for such arrest"; he cannot be detained in custody without being so informed. It is the common case of the parties before us that the applicant on being arrested was informed merely tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on 3 in Christie v. Leachinsky [(1947) 1 All ELR 567] . Nor has it been suggested that the show-cause notices which were issued on November 11, 1968, satisfied the constitutional requirement. Madhu Limaye and others are, therefore, entitled to be released on this ground alone. 12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. This the State has failed to do. The remand orders are patently routine and appear to have been made mechanically. All that Mr Chagla has said is that if the arrested persons wanted to challenge their legality the High Court should have been moved under appropriate provisions of the Criminal Procedure Code. But it must be remembered that Madhu Limaye and others have, by moving this Court under Article 32 of the Constitution, complained of detention or confinement in jail without compliance with the constitutional and legal provisions. If their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constituti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment of India: [AIR 1966 SC 816 : (1966) 2 SCR 427 : 1966 Cri LJ 602] "It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing." In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab [AIR 1952 SC 106 : 1952 SCR 395 : 1952 Cri LJ 656] and Ram Narayan Singh v. State of Delhi [1953 SCR 652 : AIR 1953 SC 277 : 1953 Cri LJ 1113] a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa [(1972) 3 SCC 256, 259 : 1972 SCC (Cri) 481] where it was said (at p. 259, para 7): "in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". and yet in another decision of this Court in Talib Hussain v. State of Jammu & Kashmir [(1971) 3 SCC 118, 121] Mr Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that (at p. 121, para 6):....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reliance on the decision of the Orissa High Court in N. Ratnakumari v. State of Odisha, 2014 Cri LJ 4433 - a decision rendered by a Division Bench. The Division Bench was dealing with a writ of habeas corpus, wherein the arrest and detention was challenged on the ground of the same being illegal and unlawful. He has particularly placed reliance on para 47 of the said decision, which reads as follows: "47. Now let us discuss at what stage the legality of an illegal detention can be challenged in a habeas corpus proceeding. In the case of A.K. Gopalan Vrs. Government of India reported in AIR 1966 SC 816, it is held that in dealing with the petition for habeas corpus, the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of application and the date of hearing. In the case of Col. Dr. B. Ramachandra Rao Vrs. State of Orissa reported in AIR 1971 SC 2197, it is held that in habeas corpus, the Court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceeding. In the case of Talib Hussain Vr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "Once it is show that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the magistrate directed detention in jail custody after applying his mind to all relevant matters .....if there detention in custody could not continue after their arrest because of the violation of Art.22 (1) of constitution, they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities." It is further held that if the detention in custody could not continue after the arrest because of violation of Article 22 (1) of the Constitution, the arrested person detained in jail custody is entitled to be released forthwith. The orders of remand which are routine and passed in a mechanical manner would not cure the Constitutional infirmities. In view of the above discussion, we are of the view that once the arrest is illegal, unauthorized and is in violation of Article 22 (1) of the Constitution of India, the same cannot be cured by any action like remand etc., in the hands of a Judicial Magistrate." (emphasis supplied) 29. Mr. Handoo also places reliance on Nawabkhan Abbask....
X X X X Extracts X X X X
X X X X Extracts X X X X
....with documents, if any, is to sufficiently enable the concerned court to decide whether bail should, or should not, be granted to the person. Similarly, while arresting a person under Section 19 of the PMLA, the substance of the information, at least, ought to have been provided with documents, if any, to enable the learned Special Judge to decide whether, or not, to grant bail to the petitioner, and also take a decision on whether, or not, to send the petitioner in remand. Mr. Handoo has also referred to Section 60A of the Code which provides that "no arrest shall be made except in accordance with the provisions of this Code or any law for the time being in force provided for arrest". Section 50 of the Code obliges, "every police officer or other person arresting any person without warrant ........" to "forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest." 32. He submits that the ED has acted as a judge in its own cause. The ED had sent a communication to the CBI on 31.08.2016 informing the CBI that during the course of investigation under FEMA, inter alia, against the petitioner, he was found to have indulge....
X X X X Extracts X X X X
X X X X Extracts X X X X
....igation to "inform" the arrestee of the grounds of arrest, is not the same order as the obligation to "communicate" the grounds of detention to a person preventively detained. 37. In support of his above submission, Mr. Mahajan, firstly, places reliance on Chhagan Chandrakant Bhujbal v. Union of India, 2016 SCC Online Bom 9938 - a decision rendered by a Division Bench of the Bombay High Court in a writ petition preferred to seek a writ of habeas corpus for release of the petitioner. In the said case, two Enforcement Case Information Report (ECIR) were registered by the ED. The petitioner was summoned in respect of those ECIRs and he appeared before the ED. The petitioner claimed that he had been restrained from moving out of the office - even for taking lunch and was, thus, illegally taken in custody by restraining his movement. An arrest order dated 14.03.2016 was made against the petitioner. The petitioner was, thereafter, produced on the following day before the Special Court under the PMLA. He was remanded to custody of ED for two days. When his ED remand custody ended, he was remanded to judicial custody, which was extended from time to time. At the time of filing of the wr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Police, C.B. Control, Bombay and Another, (1987) SCC OnLine Bom 424 : 1988 Mah LJ 634. The accused under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) were arrested and produced before the Additional Chief Metropolitan Magistrate, before whom an application for remand to police custody was made to facilitate further investigation in the case. Simultaneously, the accused moved their applications for bail before the learned Magistrate. The submission of the accused was that their arrest was illegal inasmuch, as, the grounds of their arrest were not at all communicated to them. On the other hand, the respondent claimed that the accused were orally communicated the grounds of their arrest. The learned Magistrate observed that Section 50 of the Code was mandatory, and as there was no compliance therewith, the accused were entitled to grant of bail. However, on a subsequent application made by the prosecution to seek stay of the order granting bail, the learned Magistrate passed an order staying the execution of the order of bail. Since the endeavour of the accused to seek vacation of the said ex-parte order failed, they preferred the Criminal Application before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted or other grounds for such arrest. Now the provisions of the Code of Criminal Procedure contemplate that the accused person arrested on the accusation of non-bailable offences has to be produced before the nearest Magistrate within a period of 24 hours and his further detention in custody, whether police or judicial, beyond 24 hours has to be under the authorisation of the learned Magistrate which authorisation cannot be for more than 14 days at a time. Secondly depending upon the nature of the offence and the punishment prescribed therefor, such authorisation cannot go beyond 60 days or 90 days and thereafter whatever may be the offence if the accused offers bail and charge-sheet is not filed, the Code provides that such persons shall be released on bail. Provisions of Section 50 of the Code of Criminal Procedure will have to be appreciated, understood and interpreted in the light of all these provisions. In the light of these provisions, I do not think that the communication referred to in Section 50 of the Code of Criminal Procedure must be in every case in writing. What is important is communication or knowledge or information regarding the particulars of the offence for whi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the said grounds by serving a copy of the remand application upon the petitioner by the learned Special Judge. 42. The further submission of Mr. Mahajan is that in the light of the decisions in Madhu Limaye (supra) and Kanu Sanyal (supra), to be able to succeed in the present petition, the petitioner would not only have to establish that his initial arrest was illegal, but also that his subsequent remand by the learned Special Judge was also illegal, and that the illegality existed on the date of return in the present petition. In fact, the detention should be illegal on the date of hearing of the writ petition. 43. For this proposition, Mr. Mahajan places reliance on a Full Bench decision of this Court in Rakesh Kumar Vs. State, 53 (1994) DLT 609 (FB). The Full Bench considered a reference made to it on a difference of opinion arising between two learned Judges of this Court on the issue: "as to whether in view of the provisions of Section 36-A to 36D of the Narcotic Drugs & Psychotropic Substances Act 1985 (hereinafter to be called N.D.P.S. Act), was the Metropolitan Magistrate entitled to remand the petitioner in judicial custody during the investigation of the case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he writ petition for a writ of Habeas Corpus, it is shown that the detention of the person concerned is valid, the mere fact that it was invalid earlier would not entitle such a petitioner to have any redress in the writ petition. The Full Bench, inter alia, observed as follows: "35. Reference is made to the law appearing in England, as is culled but from Halsbury's Laws of England, Fourth Edition Volume II at page 791. Some quotation has also been taken from the Third Edition. At the outset, we may mention that the very perusal of the law with regard to the date of return, time of making of return and the contents of the return, as mentioned in Halsbury's Laws of England Fourth Edition Volume II at page 791 make it evident that a return can be modified later on with the permission of the Court even upto the date of the hearing of the habeas corpus petition. If a return can be allowed to be amended and filed, then it is not understandable as to how it can be said that in England, the legal position is that detention of a person is to be justified only upto the date of the filing of the return. 36. In a book The Law of Habeas Corpus by R.J. Sharpe, 1976 Edition from pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....icular person is not in accordance with law earlier but if by happening of subsequent events his detention presently is legally valid, then there does not arise any question of releasing such a person from custody. 38. It is no doubt true that the Courts under the Constitution are jealously inclined to protect the liberty of a person keeping in view the mandate of Article 21 of the Constitution of India and the remedy of taking resort to habeas corpus is the most efficacious remedy available to any aggrieved person. A writ in the nature of habeas corpus is issued requiring the persons or the authorities detaining any person to show cause as to on what basis such a person is being detained and if no proper cause is shown for detaining the person in accordance with law, a command issues from the Court for releasing such a person forthwith. 39. In case of Naranjan Singh Nathawan (supra), the Supreme Court had observed that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the date of the institution of the proceedings. Facts, in brief, were that the petitioner in that case w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....turn, such valid order of detention is not to be taken notice of. As already mentioned, such a point of law did not arise for decision before the Supreme Court in this judgment. 42. In case of Ram Narayan Singh (supra), same ratio was laid down that in habeas corpus proceedings, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. In this case, the facts were simple. The habeas corpus petition was filed challenging the detention of some political leaders who were arrested on March 6, 1953. In the return, their detention was sought to be justified on the basis of two remand orders, one alleged to have been passed by the Additional District Magistrate at 8 P.M. on March 6, 1953 and the other by a Trial Magistrate at about 3 P.M. on March 9, 1953. The Supreme Court, on looking up the record, found that no valid order of remand had been made on March 9, 1953 at all and after the hearing was over in the case, certain documents were sought to be put on the record in order to show that in fact an order has been made remanding the said detenue to judicial custody till March 11, 1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner's detention on September 4, 1970 cannot be considered to be illegal because he was kept in detention under proper orders of remand as under trial prisoner. This judgment also does not deal with the legal question arising for decision before us that if the detention of a particular person is justifiable even after a return is filed, could such a person be released even though his detention was illegal for any earlier period? 45. In case of Talib Hussain (supra), a learned Single Hon'ble Judge sitting in a vacation has held that in a habeas corpus proceedings, the Court has to consider the legality of the detention on the date of hearing and no writ can be issued if detention on that date is lawful. This judgment is not in conflict with the judgments of the Supreme Court which are referred above. So, it cannot be said that this judgment is per inquirium. 46. In case of Col. Dr. B. Ramachandran Rao (supra), to which same learned Single Judge was also a party, it was held that in proceedings of a writ of habeas corpus, the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nother, 1997 SCC OnLine All 960 : 1998 All LJ 1428 (FB). The issue considered by the Full Bench was whether an accused person who is under judicial custody on the basis of a valid remand order passed under Section 209 or 309 Cr.P.C. by the Magistrate pending committal proceedings or trial, should be set at liberty by issuing a writ of Habeas Corpus on the ground that his initial detention was violative of the constitutional guarantee enshrined in Articles 21 and 22 of the Constitution of India. It was argued on behalf of the petitioner that when he was arrested, he was not informed the grounds of his arrest, and as such, his arrest was in contravention of his rights guaranteed under Article 22(1) of the Constitution of India. The petitioner, consequently, contended that since his initial arrest was bad, he was entitled to be released by issuance of a writ of Habeas Corpus. The petitioner placed reliance on an earlier decision of the Allahabad High Court in Vimal Kishore Mehrotra (supra) - which is also relied upon by the petitioner herein. In relation to Vimal Kishore Mehrotra (supra), the Full Bench observed: "7. ... ... ... This case of Vimal Kishor was not dealing with the si....
X X X X Extracts X X X X
X X X X Extracts X X X X
....egal that the custody at a subsequent stage had been validated by a valid order of remand passed by the magistrate." 48. Similarly, in respect of Kanu Sanyal (supra), the Full Bench observed as follows: "22. The above mentioned passage quoted from the judgment of Kanu Sanyal((1974) 4 SCC 141 : AIR 1974 SC 510) makes it clear that although before the Supreme Court the detention of Kanu Sanyal was challenged right from the time of its inception and it was specifically pleaded vide question formulated at A that initial detention of the petitioner was illegal for violating Article 22(1) of the Constitution, yet their lordships of the Supreme Court refuse to go into that question once they found that subsequently the petitioner Kanu Sanyal had been sent to Visakhapatnam Jail where it could be further judged whether his detention was in accordance with law or not. A perusal of the said judgment indicates that since the Supreme Court found that detention of Kanu Sanyal in Visakhapatnam jail was valid pursuance of the orders of the Special Judge hence the writ petition was dismissed by the Supreme Court. Accordingly in view of the judgment of the Supreme Court in Kanu Sanyal's ca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tly in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody. 23. We are also of the view that the Magistrate has acted rather mechanically in remanding the accused petitioner herein to judicial custody without so much as making sure that the remaining accused persons are quickly served with the process of the court and/or produced before the court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and produc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... legality of his earlier detention need not be considered. As regards the third ground, it was held that the conditions laid down were clearly satisfied and hence there was no question of granting relief. While concluding, in last paragraph, it was categorically held that, "a Writ of Habeas Corpus cannot be granted when a person is committed to jail custody by the competent Court by an order, which, prima facie, does not appear to be without jurisdiction or wholly illegal." (emphasis supplied)" 54. The Supreme Court also considered the decision in Madhu Limaye (supra). The observation made by the Division Bench in relation to these decisions read as under: "47. ... .... The bare perusal of these two Judgments; one in the case of Kanu Sanyal (supra) and the other in the matter of Madhu Limaye (supra), thus, make it clear that both the Judgments pertain to the preventive detention of the Petitioners therein under the provisions of Article 22 of the Constitution and not in respect of the arrest of a person accused of an offence punishable under IPC or under any other special law. Secondly, as per the Judgment in the case of Kanu Sanyal (supra), only when the deten....
X X X X Extracts X X X X
X X X X Extracts X X X X
....abeas corpus is to release persons illegally detained or confined; a writ of habeas corpus is not granted when a person is committed to jail custody by a competent court by an order which, prima facie, does not appear to be without jurisdiction or wholly illegal; infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits; a petition seeking the writ of habeas corpus on the ground of absence of a valid order or remand or detention of the accused has to be dismissed, if on the date of the return of the rule, the custody or detention is on the basis of a valid order. The Supreme Court, in its conclusion, held as follows: "It is well-accepted principle that a Writ of Habeas Corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao and Kanu Sanyal, the court is required to scrutinize the legality or otherwise of the order of detention which has been pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed by the Director of Enforcement Directorate, whereon cognizance of the offence under Section 3 punishable under Section 4 of the PMLA was taken against the accused persons, the present petition is not maintainable as not only on the date of filing of the petition, but even on the date of return, which was fixed as 13.09.2017, as also presently, the petitioner is in judicial custody and a writ of Habeas Corpus is not maintainable to assail the orders whereby the petitioner was, initially, remanded to the ED custody, and thereafter, placed in judicial custody. 58. Mr. Mahajan submits that the petitioner's application to seek bail is pending before the learned Special Judge, and the petitioner is pursuing the same. Though the petitioner's counsel had made his statement on 13.09.2017 that the application seeking regular bail shall not be pressed before the competent Court, subsequently, the said statement was withdrawn by the petitioner through counsel on 23.10.2017. 59. Mr. Anil Soni, learned Central Government Standing Counsel has adopted the submissions advanced by Mr. Mahajan. He further submits that the definition of the expression "order" in the PML Arrest Rules shows tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 grounds for such arrest are mandatorily required to be provided in writing to the person arrested at the time of his arrest. Oral communication of the grounds of arrest is not only a substantial, but proper compliance of the provision. 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 Section 19(1) "as soon as may be" makes it clear that grounds of arrest may not be supplied at the time of arrest itself or immediately on arrest, but as soon as may be. See Chhagan Chandrakant Bhujbal (Supra). iii. There is basic and fundamental difference between detention of a person under the provisions of law providing for preventive detention, and d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f remand of the Petitioner, the Special Court has directed detention of the Petitioner after applying its mind to all the relevant factors, the orders of remand having thus cured the Constitutional infirmities, if any and such orders, prima facie, being not passed without jurisdiction or in a wholly illegal manner, then, the Writ for Habeas Corpus itself is not maintainable. See Chhagan Chandrakant Bhujbal (Supra). viii. If on the date of the hearing of the writ petition, it is shown that the detention of a particular person is valid, mere fact that his detention had been invalid earlier would not entitle such a petitioner to have any redress in a habeas corpus petition. Even if detention of a particular person is not in accordance with law earlier, but if by happening of subsequent events his detention presently is legally valid, then there does not arise any question of releasing such a person from custody. See Rakesh Kumar (Supra). ix. A writ of habeas corpus would be totally misplaced where an accused is facing prosecution for the offences, cognizance whereof has already been taken by the competent court and he is in custody pursuant to the order of remand made by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f arrest verbally, or who is permitted to read the grounds of his arrest which are reduced to writing, would still be able to hold consultations with his legal practitioner with regard to his rights and remedies against his arrest, and to defend himself through a legal practitioner of his choice. The obligation cast on the Arresting Authority to produce the arrestee before the nearest Magistrate within 24 hours of the arrest, with a further mandate that such person shall not be detained in custody beyond the said period of 24 hours without the authority of the Magistrate, ensures placement of the information/ justification for the arrest of the person before the Magistrate and his due application of mind to the issue whether the arrest should continue, or not. 67. The decision of the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal (supra) and that of the learned Single Judge of the same Court in Sunil Chainani (supra) appeal to us and we find ourselves in complete agreement with the reasoning adopted by the learned Judges in those decisions. The expression "communicate to such person the grounds on which the order has been made ... ... ..." used in Article....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... detenue is communicated the grounds on which the order of detention has been made in writing, in a language that he understands, so that he is able to make his representation effectively. 69. We also find merit in the submission of Mr. Mahajan that, in the present case, the petitioner was informed of the grounds of his arrest when he was permitted to read the same, against which he also made his endorsement, in writing, as "Read". The submission of the petitioner that, as a matter of fact, the petitioner was not permitted to read the grounds of arrest, and merely his endorsement to that effect was taken by the respondent cannot be accepted, since in writ proceedings such disputed questions cannot be gone into and the Court has to proceed on the basis of the record. The record reflects the position that the petitioner had acknowledged having read the grounds of arrest. The petitioner need not have made the said endorsement if, as a matter of fact, he had not read the grounds of arrest. Pertinently, the order dated 26.08.2017 passed by the learned Special Judge, granting ED custody remand of the petitioner does not show that it was contended before him that the grounds of arrest ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... We may also observe that the obligation cast on the Competent Authority under Section 19(1) is to inform the arrestee, "as soon as may be" of the grounds of such arrest. Section 19(1) does not oblige the Competent Authority to inform/serve the order of arrest, or the grounds for such arrest to the arrestee simultaneously with his arrest. In the present case, the petitioner was informed of the grounds of his arrest at the time of his arrest itself. 72. In the facts of the present case, the petitioner, in any event, came to be informed of the reasons for his arrest when a detailed application was moved before the learned Special Judge on 26.08.2017, i.e. the day following his arrest, setting out the materials which also virtually contain the grounds of his arrest. The said application was, admittedly, served upon the petitioner on 26.08.2017. The said application under Section 167 Cr.P.C. read with Section 65 PMLA seeking ED custody remand of the petitioner, inter alia, states that: "2. During the course of investigation certain facts, which are based on records have emerged, which prima facie constitute omission and commission of certain acts on the part of certain public ser....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ained the money for themselves or through their kin. In support of this two public persons/ witnesses Satish Sana and Pradeep Koneru came forward and provided their statements that they had paid crores of rupees to Moin Qureshi to help them in getting relief from investigating agency, CBI. c) There are conversations to the effect that he has been regularly sending gifts to various Govt. servants holding important and sensitive position who obtained the illegal gratification or pecuniary advantage either themselves or through their kith and kin. 5. The analysis of BBM messages retrieved from Mobile phones of Moin Qureshi and his associates revealed that the Hawala operators were also used to transfer bribe money (belonging to Government officials) to different foreign locations like Paris(France) and UK. The service provider M/s Black Berry, Canada has confirmed the authenticity of the BBM Messagee. 6. Further, in their statement the two witness have confirmed in their respective statements that that they have delivered crores of rupees for Moin Akhtar Qureshi and his associates through his employee Aditya Sharma. 7. One of the witness in his statement stated that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....been established from account opening form of Barro Holding with BSI Bank Ltd. Singapore. Moin Qureshi have full authority to handle the proceeds and transactions and Purchase in the company. KYC document carries his Passport No.Z1929440. The email conversation of BSI, Bank's employee Tushar Sekhawat with Yeo Gabin (representative of Moin Qureshi's Company Bulova Holding) confirms its ownership." 73. 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. We may again observe that according to the respondents, he was informed of the same by permitting him to read the grounds of arrest against his acknowledgement at the time of his arrest. 74. The submission of Mr. Handoo, premised on the definition of the expression "order" contained in Rule 2(h) of the PML Arrest Rules, in our view, is of no avail for the reason that Section 19(1) nowhere states that the arrestee shall be served with the "order" of arrest, at the time of his arrest by the Competent Authority. Pertinently, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as we have noticed hereinabove, after his arrest on 25.08.2017, the petitioner was produced before the learned Special Judge on 26.08.2017 when he was remanded to ED custody till 31.08.2017. The present petition was preferred after the said remand of the petitioner by the learned Special Judge under Section 167 Cr.P.C. read with Section 65 of the PMLA. We have also set out hereinabove the further developments which have taken place with regard to the petitioner's remand to ED custody and thereafter to judicial custody. Thus, it is the judicial remand/ custody of the petitioner, which is sought to be assailed in the present writ petition. 78. We have set out in-extenso, the well-settled legal position with regard to maintainability of a writ petition under Article 226 of the Constitution of India to seek a writ of Habeas Corpus in respect of a person who is detained under the orders of a Competent Court. It is equally well-settled by a catena of decisions, taken note of hereinabove, that the earliest date with reference to which the illegality of detention may be examined in a Habeas Corpus proceeding, is the date on which the application for Habeas Corpus is made to the Court, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication. In paragraph 14 of the order, the learned Special Judge has also referred to the decisions relied upon on behalf of the ED. The learned Special Judge records that he has considered the rival submissions and gives his reasons for allowing the remand application by observing: "17. Considering the seriousness of the allegations and to enable the ED to complete thorough investigation, ED custody remand of Moin Akhtar Qureshi for five days i.e. 31.08.2017 is granted." 80. Pertinently, though the ED sought the ED custody remand for 14 days, the learned Special Judge granted the same, in the first instance, only till 31.08.2017, i.e. for about 5 days, which also betrays application of mind by the learned Special Judge while passing the order dated 26.08.2017. 81. Similarly, the learned Special Judge while passing the order dated 31.08.2017 allowing the second application under Section 167 Cr.P.C. read with Section 65 PMLA, and extending the ED custody remand of the petitioner till 04.09.2017, passed a detailed order. The order dated 31.08.2017 records the progress made in the investigation viz. "during remand period, seven witnesses have been examined and trail of 12 Cro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... his submissions made at the time of the first and second remand. 7. Considering the submissions of learned counsels, ED custody of accused Sh. Moin Akhtar Qureshi is extended for four days till 08.09.2017. Let the accused be produced on the said date at 2 pm." 84. On 08.09.2017, the petitioner was sent to judicial custody on 14 days remand. The considerations, which went into making this order, have been recorded therein and the same reads as follows: " The ED custody of the accused completes today. An application is filed requesting for Judicial Custody remand for 14 days mentioning that investigation is at initial stage and same is pending. Ld. Spl. PP for ED has stated that the statements of public servants, private persons are yet to be recorded and more properties have surfaced acquired from proceeds of crime. He further stated that statement of HAWALA operator is being recorded and release of accused at this stage shall hamper the investigation. On the other hand, ld. Counsel for accused strongly opposed the Judicial Custody remand. He submits that the application for Judicial Custody remand is concealing more facts than revealing. Considering the submis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e next date, which was fixed as 07.11.2017. 88. Thus, the petitioner continues to be in judicial custody and there appears to be no illegality whatsoever in his continuing judicial custody. The petitioner has statutory remedy of seeking regular bail from the Competent Court under Section 45 of the PMLA. Thus, there was no question of this Court being called to issue a writ of Habeas Corpus for release of the petitioner when he is continuing in judicial custody. Not only his present judicial custody appears to be legal, but his initial arrest on 25.08.2017, and his subsequent remand to ED custody on successive occasions, and his eventual judicial remand also appears to be a result of application of judicial mind. The same cannot be described as mechanical. 89. Reliance placed by Mr. Handoo on Nawabkhan Abbaskhan (supra) is misplaced in view of the settled legal position, as we have taken note of hereinabove. Similarly, reliance placed on Narayan Dass Indurakhya (supra) and Atma Ram (supra) is also misplaced since, firstly, these decisions relate to cases of preventive detention, and not the case of arrest referable to Article 22(1) of the Constitution and, secondly, it cannot ....