TaxTMI 
TaxTMI 
2024 (1) TMI 401
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....tion 41A(3) Cr.PC; (ii) Declare all consequential actions including the remand order(s) dated 10.06.2023 & 20.06.2023 passed by Ld. Duty judge/ Special CBI Judge as null and void; (iii) That pending the hearing and final disposal of the present Petition, this Hon'ble Court be pleased to stay the Impugned Order(S) dated 10.06.2023 & 20.06.2023; (iv) That pending the hearing and final disposal of the present. Petition, this Hon'ble Court be pleased to release the Petitioner from the abjectly illegal custody and incarceration; (v) That pending the hearing and final disposal, further investigation in ECIR No. DLZO-II/06/2019 dated 29.08.2019 against the Petitioner be stayed; (vi) For such other and further interim/ad-interim reliefs as the nature and circumstances of the case may require." 3. BAIL APPLN 2356/2023 has been filed on behalf of the petitioner seeking grant of regular bail in ECIR/DLZO-II/06/2019 registered by the Directorate of Enforcement. 4. The brief facts which are relevant for disposing of the aforesaid two cases are as under: i. The petitioner is a businessman and was the ex-promoter, Vice Chairman and Managing Director of M/s Bhushan Steel Ltd.....
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....t. vi. It is the case of the petitioner that on the same day, at about 04:50 pm the officials of the respondent entered and searched the residential premises of the petitioner and thereafter, the petitioner was arrested by the respondent at 10:25 pm. vii. The petitioner was produced before the Ld. Special Judge (CBI), Rouse Avenue Court on 10.06.2023, when the Ld. Judge granted remand for 10 days which was further extended vide order dated 20.06.2023. 5. Initially, when the matter was argued, submissions on behalf of the petitioner were made by Mr Kapil Sibal, learned Senior Advocate; Mr Abhishek Manu Singhvi, learned Senior Advocate and Mr Vikas Pahwa, learned Senior Advocate. The thrust of the submissions advanced by the learned senior counsel appearing on behalf of the petitioner was that - (i) the arrest of the petitioner is contrary to Section 41 and 41A of the Code of Criminal Procedure; (ii) the arrest of the petitioner is in violation of Section 19(1) of the PMLA as grounds of arrest were not informed to the petitioner. Elaborating on this argument, it was submitted that the process of informing in terms of the said provision would entail providing a copy of the gr....
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.... PMLA Act, 2002 is not duty bound to follow the rigors of Section 41A of the CrPC, in as much as, there is already an exhaustive procedure contemplated under the PMLA containing sufficient safeguards in favour of the person arrested. It was further held that the arrest of the arrestee is bound to be followed by an information being 'served' on the arrestee of the grounds of arrest and any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. The relevant part of the decision in V. Senthil Balaji (supra) reads thus: "35. In light of the aforesaid discussion, an Authorized Officer under the PMLA, 2002 is not duty bound to follow the rigor of Section 41A of the CrPC, 1973 as against the binding conditions under Section 19 of the PMLA, 2002. The above discussion would lead to the conclusion that inasmuch as there is already an exhaustive procedure contemplated under the PMLA, 2002 containing sufficient safeguards in favour of the person arrested, Section 41A of the CrPC, 1973 has no application at all. xxxx xxxx xxxx xxxx 39. To effect an arrest, an officer authorised has to assess and evaluate the materials in his possessio....
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.... in this regard. In the case on hand, that is the situation insofar as Basant Bansal is concerned. Though the ED claims that witnesses were present and certified that the grounds of arrest were read out and explained to him in Hindi, that is neither here nor there as he did not sign the document. Noncompliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji (supra). Such a precarious situation is easily avoided and the consequence thereof can be obviated very simply by furnishing the written grounds of arrest, as recorded by the authorized officer in terms of Section 19(1) of the Act of 2002, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer. 37. The second reason as to why this would be the proper course to adopt is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail,....
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....isions of Section 19(1) of the Act of 2002. Further, as already noted supra, the clandestine conduct of the ED in proceeding against the appellants, by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, in consequence, their remand to the custody of the ED and, thereafter, to judicial custody, cannot be sustained." (emphasis supplied) 10. After the pronouncement of judgment in Pankaj Bansal (supra), on an oral mentioning by the parties, the matter was listed again and the parties were heard on the limited aspect as to whether the said decision is prospective in its application. 11. It was argued on behalf of the respondent that the decision in Pankaj Bansal (supra) is prospective in its application because the Supreme Court has expressly held that the obligation of furnishing the grounds of arrest shall become effective 'henceforth'. On the contrary, it was argued on behalf of the petitioner that the Supreme Court has only clarified the position of the existing law that is, Section 19 of the PMLA and has not....
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....ourt also noted that the expression 'as soon as may be' as occurring in Section 19 of PMLA has not been specifically explained in Vijay Madanlal Choudhary vs. Union of India 2022 SCC OnLine SC 929 nor the said expression has been interpreted in either V. Senthil Balaji (supra) or in Pankaj Bansal (supra). Accordingly, the Court observed that the interpretation of the expression 'as soon as may be' assumes significance. Referring to the judgment of a Constitution Bench in case of Abdul Jabar Butt and Another vs. State of Jammu & Kashmir AIR 1957 SC 281 and a three-judge bench decision in Durga Pada Ghosh vs. State of West Bengal (1972) 2 SCC 656, the Court held that the expression 'as soon as may be' contained in Section 19 of PMLA is required to be construed as - 'as early as possible without avoidable delay' or 'within reasonable convenient' or 'reasonably requisite' period of time. The Court also observed that the 'reasonably convenient' or 'reasonably requisite' time to inform the arrestee about the grounds of his arrest would be twenty-four hours of the arrest. 14. Elaborating further, the Court observed that it would be sufficient compliance of not only Section 19 of PMLA but....
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....he matter to enable the parties to make their respective submissions as to the applicability of the said decision to the facts of the present case. Accordingly, the matter was listed for hearing on 20.12.2023 and 21.12.2023. 16. For the sake of completeness, it may noticed that during the initial stage of hearing the document 'ground of arrest' forming part of the case dairy was also shown to the Court. However, it is only on 21.12.2023 that the learned special counsel for the respondent / ED handed over the 'ground of arrest' to the court and a copy thereof was supplied to the petitioner's counsel. Subsequently, the said document was filed on 22.12.2023, which now forms part of the court record. 17. Mr. Vikas Pahwa, learned Senior Counsel for the petitioner submits that the case of the petitioner is squarely covered by the decision of Ram Kishor Arora (supra). Elaborating on his argument, he submits that in the said case the appellant therein was undisputedly informed about the grounds of arrest and he had also put his signatures as an acknowledgement of having been informed the grounds of arrest, but in the present case the petitioner has disputed the very existence of 'ground ....
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....ground of arrest' and 'Arrest Order' were neither shown to the petitioner nor provided, therefore, the arrest of the petitioner on 09.06.2023 is in violation of Section 19 of PMLA rendering the same to be illegal. 23. Per contra, Mr. Zoheb Hossain, learned special counsel for the respondent/ED submits that the case of the petitioner from the very inception is that the petitioner was shown the 'ground of arrest' but was not provided with the ground of arrest. In support of his contention, he referred to the grounds (D) and (E) of the petition; remand application dated 10.06.2023; the remand order dated 10.06.2023 and the application filed by the petitioner seeking rectification of remand order dated 10.06.2023. 24. Inviting the attention of the Court to para 7 of the remand order dated 10.06.2023, he submits that the learned Special Judge had perused the case diary before recording his findings, therefore, the findings recorded in the said order are premised on material available in the case dairy, which includes the 'ground of arrest', therefore, the said findings cannot be faulted with. The relevant part of the order dated 10.06.2023 reads as under: "7. I have considered the s....
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....f receiving such information, the petitioner had put his signatures and date on the Arrest Memo. He submits that no specific challenge has been laid to the panchnama or to the factual aspects recorded therein. 30. He submits that all the documents viz., arrest memo, arrest order, panchnama, grounds of arrest etc. are official documents, therefore, they carry a presumption of correctness under Section 114(e) of the Evidence Act. 31. He contends that the law as regard furnishing of grounds of arrest as laid down in Pankaj Bansal (supra) has been made applicable prospectively as held by the Supreme Court in Ram Kishore Arora (supra), therefore, it was the decision of this Court in Moin Akhtar Qureshi vs. Union of India (DB) 2017 SCC OnLine Del 12108 which was holding the field when the petitioner was arrested on 09.06.2023. He submits that in terms of Moin Akhtar Qureshi (supra), oral communication of 'ground of arrest' was proper compliance of the mandate of Section 19(1) of the PMLA. 32. He submits that the contents of 'ground of arrest' are the same as mentioned in the remand application moved by the respondent before the learned Special Judge on 10.06.2023, therefore, the respo....
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....nt in Pankaj Bansal (supra) apropos the manner in which the grounds of arrest were to be informed in terms of Section 19(1) of the PMLA. 38. As noted above, the contention of Mr. Hossain is that prior to the decision in Pankaj Bansal (supra), it was the decision of Division Bench this Court in Moin Akhtar Qureshi (supra), which was holding the field. On the other hand, Mr. Pahwa contends that the correctness of the law laid down in Moin Akhtar Qureshi (supra) was doubted by another Division Bench of this Court in Rajbhushan Omprakash Dixit (supra), therefore, the law that was prevailing at the time of petitioner's arrest was the law laid down in Rajbhushan Omprakash Dixit (supra). 39. Before proceeding further, apt it would be to refer to the law laid down by this Court in Moin Akhtar Qureshi (supra), wherein it was observed as under: "65. On consideration of the aforesaid decision relied upon by learned counsels, the position, in law, which emerges is as follows: i. The procedural safeguards in clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting a....
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....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. 75. 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...... 76. 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......." (emphasis supplied) 40. Since, in Moin Akhtar Qureshi (supra), a specific reference was made to the decision of the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal vs. UOI 2016 SCC Online Bombay 9338, therefore, it is app....
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....deration, it refers to a larger Bench, the following questions for consideration: (i) xxxx (ii) xxxx (iii) Under Section 19 of PMLA read with Rules 2(h) and 2(g) of the PML Arrest Rules read with Rule 6 and Form III thereof, does a person arrested under Section 19(1) of the PMLA have to be furnished a copy of the grounds of arrest? If so, should they be furnished soon enough to enable the person arrested to apply for bail or to oppose the application for remand? What are the consequences of the failure to do so?"... For the sake of completeness it may be mentioned here that the aforesaid question now stands settled by the decision of Supreme Court in Pankaj Bansal (supra) but the directions contained therein making it mandatory for the arresting officer to communicate the grounds of arrest to the arrestee in writing, are prospective in nature. 43. The issue whether the law laid down in Moin Akhtar Qureshi (supra) or in Rajbhushan Omprakash Dixit (supra) would be applicable, need not detain this Court any longer, in as much as, it is trite law that pendency of a reference to a larger bench, does not mean that all other proceedings involving the same issue would remain stay....
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....) wherein the Court held that non furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case could neither be held to be illegal nor the action of the concerned officer in not furnishing the same in writing could be faulted with. 47. Now reverting to the factual conundrum which still looms large in the present case and needs to be decided is whether the petitioner was orally communicated, or in other words shown, the grounds of arrest at the time of his arrest and for this purpose reference to 'ground of arrest' and other contemporaneous documents is imperative. 48. Clearly, the document 'ground of arrest' bears the signatures of the petitioner at two points. One, immediately after the conclusion of narration of grounds of arrest. Secondly, below the endorsement made in terms of the judgment of the Supreme Court in D.K. Basu (supra) to the effect that the petitioner has been intimated about his rights as an arrestee and his wife has been informed about his arrest "physically" at "22.28" on 09.06.2023. Therefore, there is no substance in Mr. Pahwa's contention that the signature of the petitioner on the 'ground of arrest' is only a ....
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....' as a token of acknowledgement of having been informed the grounds of his arrest, cannot be reason to discard what is recorded in the panchnama when the same has not been disputed at any stage. 53. The contention of the petitioner that the 'Arrest Order' dated 09.06.2023 records that the petitioner was arrested at Parvartan Bhawan shows that the said document was not in existence at the time, the search was carried out at the residence of the petitioner, does not hold water. A perusal of the 'Arrest Order' shows that the petitioner apart from affixing his signature has also appended the date "9/6/23", and the time "22:28" at which his wife was informed about his arrest, in his own handwriting, therefore, the said document cannot be said to be ante-dated or ante-timed. In so far as the place of arrest is concerned, it is evident from the 'Arrest Memo' that the place of arrest of the petitioner is shown as his residence viz., W-29, Greater Kailash-II, New Delhi and this document was available with the petitioner from the date of arrest itself but there is no whisper either in the petition or in the bail application that place of arrest is wrongly recorded nor any such objection see....
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...., arrest order to which after having gone through it, he appended his signature. He was arrested vide arrest memo dated 09.06.2023." (ii) On 10.06.2023, before the learned Special Judge, the learned counsel for the petitioner appears to have argued that the petitioner was not informed the grounds of his arrest but the learned Special Judge, after perusing the case diary rejected the said argument. The relevant part of the order dated 10.06.2023 reads as under: "7. I have considered the submissions advanced by both the sides as well as gone through the case diary produced by the ED." "8. ....... The contention of the Ld. Counsel for the accused that accused was not informed about the grounds of his arrest is contrary to the records. Accused has been provided with the grounds of his arrest and same is duly signed by him and countersigned by two independent witnesses." (emphasis supplied) (iii) Subsequently, an application seeking modification/rectification of the order dated 10.06.2023 was filed by the petitioner alleging that in paragraph 8 of the said order inadvertently the words 'provided with' have occurred, instead of the word 'shown', as correctly recorded in the las....
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.... petition the said findings have not been challenged. Therefore, the finding that the petitioner was shown the 'ground of arrest' and the same is duly signed by him and countersigned by two independent witnesses, has remained unassailed. 58. Even in the present petition no definite case has been pleaded that the petitioner was not shown the grounds of arrest. The stand taken is that the petitioner was forced to sign some alleged documents purportedly the grounds of arrest but the same were never supplied. Paragraph 8 of the petition reads as under: "8. Therefore, it is the specific case of the Petitioner that no grounds of arrest has been communicated or were explained nor any explanation given for his arrest. Moreover, Petitioner was forced to signsome alleged documents purportedly the grounds of arrestand same was never supplied with the grounds of arrest." (emphasis supplied) Evidently, there is no categorical denial of the fact that the petitioner had signed the grounds of arrest, rather the stand taken by the petitioner goes to show that he had signed the grounds of arrest but a physical copy of the same was never supplied to him. This stand justifies the findings record....