TaxTMI 
TaxTMI 
2023 (10) TMI 823
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....till remand application is reconsidered by trial court. d. to pass any such other or further order(s) as mat do complete justice on the facts and circumstances of the case." Background 2. Briefly stated, the facts of the case for the purpose of adjudication of the present petition are as under: i. ECIR/09/DLZO/2016 was initiated by the petitioner/Directorate of Enforcement (hereinafter referred to as the 'department') against 11 accused persons including the present respondent, Sh. Dev Inder Bhalla who was stated to be Director of M/s Interdev Aviation Services Pvt. Ltd., Singapore. ii. It is the case of the department that during course of investigation in the aforesaid ECIR, summons were issued to the respondent under Section 50(2) and 50(3) of the PMLA on various dates to join the investigation, however, he did not appear. To secure his presence, on an application moved by the department, open ended bailable warrants were issued by Mr. Naresh Kumar Malhotra, Special Judge, New Delhi vide order dated 12.01.2018. It is the case of the petitioner that on completion of investigation, a complaint was filed against 11 persons including the present resp....
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.... through its competent officers and summons for the appearance of the accused Sh. Dev Inder Bhalla alongwith other accused to attend the trial of the case has been issued by the court and are in existence. 29. It may also be noted that the complaint case in the present case was filed on 11.12.2020, as mentioned above, after carrying out due investigations against the accused persons including the accused Dev Inder Bhalla director of M/s Interdev, Singapore (A-11) and his role is also specified in Para No. 7 (k) ;- Role of accused persons in the commission of offence of money laundering: (k) 'During the course of investigation, it is revealed that Dev Inder Bhalla is the director of M/s Interdev Aviation Services Singapore : signed the sham agreement dated 23.11.2009 with Ms KRBL DMCC, Dubai to introduce M/s Interdev Aviation Services Put Ltd to M/s Niki Lufitfahrt GmbH, Austria for supply of used planes to launder the proceeds of crime to hide the real source of the money and has thus being the representative of Ms Interdev, Aviation Services Pvt. Ltd, actually involved in the possession, acquisition and layering of the proceeds of crime in the offence of....
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....he learned Special Court. It was submitted that it is the case of the department that the said non-bailable warrants remained in force and, therefore, the execution of the same by arresting the present respondent was within permissible parameters of the procedure, as envisaged in law. Learned Special Counsel also drew the attention of this Court to the following judgments to argue that police remand can be sought in respect of an accused person who is arrested during the course of further investigation after filing of the chargesheet. i. State v. Dawood Ibrahim Kaskar, 2000 (10) SCC 438 - It was submitted that in the said case, the Hon'ble Supreme Court held that while dealing with an accused person who is produced before the Court pursuant to a warrant of arrest issued under Section 73 of the CrPC, the Court can either release him on bail under Section 439 of the CrPC or order his continued detention (in police custody or in judicial custody) under Section 167 of the CrPC. It is the Court's discretion to allow or deny an application moved by the investigating agency concerned seeking police custody, in accordance with Section 167(3) of the CrPC. ii. Pradeep Ram v....
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....ng been filed and cognizance being taken, further investigation was continuing and the non-bailable warrants issued by the learned Special Court were in operation and since the respondent was arrested by way of executing the said non-bailable warrants, his arrest, therefore, would be deemed to be one during the course of further investigation. In this scenario, the application of police custody would be justifiable and if sufficient grounds for seeking such custody were made out, the same ought to have been allowed by the learned Special Court. It was pointed out that in the complaint it is categorically stated that further investigation into the role of the respondent is pending. Submissions on behalf of the Respondent/Dev Inder Bhalla 9. Learned counsel appearing on behalf of the respondent drew the attention of this Court to the following paragraphs of the impugned order: "37. Thereby, the IO was duty bound to handover the unexecuted NBW's so issued to the Court at the time of filing the complaint in the present matter, which has not done by the department for the plausible reasons best known to them, nor the said fact was apprised to the Court at that time or eve....
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.... the accused persons, directing them to appear and face trial for the commission of offences \ under Section 3 r/w Section 70 of the Prevention of Money Laundering Act, 2002; (iii) To pass an order confiscating the properties attached vide Provisional Attachment Order No. No. 06/2019 dated 03.07.2019. (iv) To pass- an order dispensing the complainant from the deposition under Section 200 of the Code of Criminal Procedure; (v) To pass such other or further orders as this Hon'ble Court may deem fit and proper in the interest of justice." 10. Learned counsel appearing on behalf of the respondent submitted that the judgments relied upon by learned Special Counsel for the department are distinguishable on the facts of the present case as has also been observed by the Special Court in the impugned order dated 16.02.2023. Learned Counsel for the respondent placed reliance on a judgment dated 09.09.2011 in Criminal Appeal No. 1758 of 2011 titled 'Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Anr.' wherein in para 23 the following guidelines are laid down which are as under: "23. However, before parting with the judgment, we feel that in order....
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....or the return of the warrant, the Court must insist upon a compliance report on the action taken thereon by the Station House Officer of the concerned agency; (j) The report on such warrants must be clear, cogent and legible and duly forwarded by a superior police officer, so as to facilitate fixing of responsibility in case of misuse; (k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and (l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused." 11. Learned counsel appearing on behalf of the respondent further submitted that insistence of the department for seeking police custody of the respondent even after declining the same, by the learned Special Court....
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....e investigation or answered summons and the Court feels that judicial custody is necessary for completion of trial or where further investigation is required, the case has to dealt with differently from other offences. It was further observed that though it is open to the Courts to grant interim bail, such applications would ultimately have to be considered in accordance with the relevant statutory provisions. 15. Learned Special Counsel submitted that in Satender Kumar Antil (supra), the Hon'ble Supreme Court observed that even if a case is required to be committed to the Court of Sessions for trial in terms of Section 209 of the CrPC, the Magistrate has the power to remand an accused to custody until such commitment has been made. Analysis and Findings 16. Heard learned counsel for the parties and perused the record. 17. For determination of the present petition, it is relevant to take note of the following dates: i. 18.10.2016 - The Central Bureau of Investigation registered RC No. 217 2016A0015/ACU-V under Section 120B of the Indian Penal Code read with Sections 7/8/9/12/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. ii....
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.... of the investigating agency and no steps were taken to execute them. A copy of the said non-bailable warrants has been placed on record as Annexure P-5 to the present petition. A perusal of the said non-bailable warrants reflects that the columns provided to enumerate the steps taken in furtherance of the said warrants are blank except that there is an endorsement that the warrants were executed and the respondent was arrested on 14.02.2023 at 2100 Hours. 19. Normally, warrants are issued by the concerned Court during the course of investigation when an accused person is not available despite efforts or after filing of the chargesheet when the person who has been summoned by the concerned Trial Court does not appear to face trial. Another possible situation can be where warrants issued against a person during the course of investigation could not be executed and a chargesheet/complaint is filed with respect to the other accused persons and the person against whom warrants have been issued is shown as absconding. In Dawood Ibrahim Kaskar (supra), the Hon'ble Supreme Court was dealing with a similar situation where an application was moved on behalf of the Central Bureau of Inves....
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....e department to arrest the respondent on the basis of the same. It is not the case of the department that the arrest was made in exercise of powers under Section 19 of the PMLA. 21. The application seeking police remand of the respondent was premised on the arrest of the respondent in pursuance of the aforesaid non-bailable warrants. It is no doubt, that it is stated in the complaint that further investigation qua the said respondent is continuing, but, at the same time it is pertinent to note that after filing of the said complaint, no application was moved before the learned Special Court seeking issuance of non-bailable warrants in lieu of summons. In fact, the application seeking police remand has the following subject: "APPLICATION UNDER SECTION 73(3) OF CODE OF CRIMINAL PROCEDURE, 1973 AND SECTION 167 OF CODE OF CRIMINAL PROCEDURE, 1973 READ WITH SECTION 65 OF PMLA, 2002 FOR EXECUTION OF NON-BAILABLE WARRANT DATED 15.01.2018 ISSUED VIDE ORDER DATED 12.01.2018 AGAINST THE ACCUSED/RESPONDENT AND FOR SEEKING ED CUSTODY OF ACCUSED DEV INDER BHALLA FOR 14 DAYS." The prayer in the said application is as under: "1. To accept the execution report of the open e....
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....to undertake while dealing with a case of remand. He is expected to do a balancing act. As a matter of rule, the investigation is to be completed within 24 hours and therefore it is for the investigating agency concerned to satisfy the Magistrate with adequate material on the need for its custody, be it police or otherwise. This important factor is to be kept in mind by him while passing the judicial order. We reiterate that Section 19 of the PMLA, 2002, supplemented by Section 167 of the CrPC, 1973 does provide adequate safeguards to an arrested person. If Section 167 of the CrPC, 1973 is not applicable, then there is no role for the Magistrate either to remand or otherwise. 74. Such a Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the PMLA, 2002. It is his bounden duty to see to it that Section 19 of the PMLA, 2002 is duly complied with and any failure would entitle the arrestee to get released. The Magistrate shall also peruse the order passed by the authority under Section 19(1) of the PMLA, 2002. Section 167 of the CrPC, 1973 is also meant to give effect to Section 19 of the PMLA, 2002 and therefore it is for th....