TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 201
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....s actual arrest;" 2. The petition challenges an order dated 05.08.2021 wherein an application moved by the petitioner herein to declare the arrest of the petitioner as illegal was dismissed without any reason. It is the submission of learned counsel for the petitioner the arrest memo of the petitioner shows he was arrested at 19.55 hours of 03.08.2021 but was put under restrain at 8.30 AM itself when his premises was raided. The search and seizure continued from 8.30 AM till 3.30 PM of 03.08.2021. Thereafter he was taken to office of Directorate of Enforcement for recording of his statement. It is argued per settled law the time when an offender is first put to restraint is the time of arrest and if this Court adheres to this argument then in that event the petitioner was not produced before the learned Special Judge, PMLA within 24 hours of his arrest, hence his arrest would be illegal. 3. The learned counsel for the petitioner has referred to Ashfak Hussain Allah Detha @ Siddiqui and another vs. The Assistant Collector of Customs (P) Bombay and another (1990) 1 BOM CR 451 wherein the Court held: "10. It is thus clear that arrest being a restraint on the personal liberty, it i....
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....ores in the present case. 6. In Ritesh Tewari and Another vs. State of Uttar Pradesh and Others (2010) 10 SCC 677 the Court held: "32. It is settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironical to permit a person to rely upon a law, in violation of which he has obtained the benefits." 7. He further argued the learned Judge has not given any reasons to decide his application and being an unreasoned order, it needs to be set aside. He relies upon Jitender Kumar @ Jitender Singh vs. The State of Bihar passed in CRL.A.888/2019 dated 10.05.2019 wherein the Supreme Court held: 9. In the entire impugned order, which consists of 13 paras, we find that the High Court did not assign any reason as to why the petition is liable to be dismissed. In other words, neither there is any discussion and nor the reasoning on the submissions urged by the learned counsel for the p....
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....connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested." 48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stag....
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....) and Harban Singh v. State, AIR 1970 Bom 79 : (1970 Cri LJ 325) touching on this issue. For the reasons stated above, we hold that the rule laid down by the learned Judges constituting the Division Bench, in Kaiser Otmar's case, 1981 Mad LW (Cri) 158 : (1981 Cri LJ (NOC) 208) with great respect, with regard to the mode of arrest is not good law. 62. The other question that arises for our consideration in this reference is whether the Customs Officers can detain any person under the guise of an enquiry, interrogation or investigation beyond twenty-four hours before producing him before the Magistrate and whether such a detention would be violative of Article 22 of the Constitution of India. We have launched on a detailed discussion while interpreting the term "custody", which discussion has a bearing on this question. The question of production of a person before a Magistrate within twenty-four hours as envisaged in Article 22(2) of the Constitution of India, would arise only if that person is arrested and detained in custody." 12. Harbansingh Sardar Lenasingh and another vs. The State 1970 Cri.Lj. 325 also notes : xxx It may be convenient at this stage to set out the pr....
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....stody and arrest are not synonymous. In every arrest there is always a custody but in every custody there may not be arrest. Even otherwise, if one look at the scheme of PMLA it shows arrest needs to be made only under Section 19(1) of the Act after completion of process under Section 17(1) and 18(1) and the accused is to be produced before the concerned court within 24 hours of his arrest under Section 19(1). 14. Section 17(1), 18(1), 19(1) and (3) are reproduced as under : "17. Search and seizure. - (1) Where 15 [the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section,] on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person- (i) has committed any act which constitutes money-laundering, or (ii) is in possession of any proceeds of crime involved in money-laundering, or (iii) is in possession of any records relating to money-laundering, then, subject to the rules made in this behalf, he may authorise any officer subordinate to him to- xxx 18. Search of persons. - (1) If an authority, authorised in this behalf by th....