TaxTMI 
TaxTMI 
2023 (10) TMI 1494
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....ough Hybrid mode ] 1. Upon the requests made by the learned counsel for the parties, CRL.M.C. 7278/2023 is taken up for adjudication first. CRL.M.C. 7278/2023 2. The petitioner seeks following reliefs:- "A. Declare the arrest of the Petitioner as illegal and in gross violation of the fundamental rights of the Petitioner guaranteed under Article 21 and 22 of the Constitution of India in relation to FIR No. 224/2023 dated 17.08.2023 PS Special Cell, Lodhi Road, Delhi Police; B. Declare and set aside the Remand Order dated 04.10.2023 passed by the Ld. Special Judge, Patiala House Court as null and void as the same being passed in complete violation of all constitutional mandates including failure to consult and to be defended by legal practitioner of his choice during the Remand Proceedings, being violative of Petitioner's right guaranteed under Article 22 of the Constitution of India. C. Direct immediate release of the Petitioner from custody in FIR No. 224/2023 dated 17.08.2023 PS Special Cell, Lodhi Road, Delhi Police." 3. Facts as culled out from the petition filed by the petitioner are as follows:- "ix. On 03.10.2023 during the ....
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....gn any Vakalatnama nor was the Counsel provided with a copy of the said FIR despite multiple requests. The Petitioner and his counsel were informed that he would be produced for the purposes of Remand the next day i.e. on 04.10.2023 during court hours. xii. On 04.10.2023, without any prior notice, again during the wee hours of morning, the Petitioner was abruptly woken up and taken to the residential premises of the Ld. Special Judge at around 66:30 AM. At the residence of the Ld. Special Judge, the Public Prosecutor, and a Legal Aid Counsel ("LAC")/remand counsel were already present, and the counsel for the Petitioner, whose identity was known to the IO, was not informed. It is submitted that no documents authorising the LAC to appear on his behalf were executed by the Petitioner. Neither the Petitioner's counsel nor any of his family members were informed about the aforesaid proceedings and were consequently not present during the course of the hearing which commenced upon arrival of the Petitioner and the police authorities at the said residence. The entire remand proceedings took place in absence of Petitioner's counsel and family members. During the hearing, ....
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..... However, shockingly, the Petitioner's counsel was informed that the Impugned Order has already been passed and seven days police custody remand has been granted vide the Impugned Order. The order was passed without hearing the Petitioner's Counsel and without consideration of the aforesaid documents. It is submitted that despite the illegal arrest of the Petitioner in the said FIR and the unlawful manner in which the Remand Proceedings were conducted due to the actions of the Respondent, the Ld. Special Judge on 04.10.2023, without application of judicial mind, particularly on the issue of non-compliance with Article 22, erroneously proceeded to remand the Petitioner herein to police custody for seven days. xvii. It is also pertinent to mention that the order records that it has been signed at 6:00 AM which is not/cannot be the case as no remand order was passed at least till 7 AM when the Petitioner's family member was called to join the remand proceedings. Further, shockingly, the order also records the presence of the Petitioner's Counsel through telephone, though he was contacted only after 7 AM and thus could not have been present at 6 AM. x....
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.... India & Ors, reported in 2023 SCC OnLine SC 1244, which will be adverted to in the following paragraphs. According to the petitioner, though the aforesaid case was in the context of the provisions of sections 19(1), 19(2) and 45 of The Prevention Of Money-Laundering Act, 2002 (hereinafter referred to as "PMLA") read with Article 22(1) of the Constitution of India, however, the language of section 19 of PMLA being pari materia with section 43B of The Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as "UAPA"), the ratio would be squarely applicable to the facts of the present case. The emphasis was on the following paragraphs:- "32. In this regard, we may note that Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 of the Act of 2002 enables the person arrested under Section 19 thereof to seek ....
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....llow such grounds to be read by the arrested person or be read over and explained to such person. 36. That being so, there is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle. Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance 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. Non-compliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji (supra). Such a precarious situation is ....
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....on. In the event any such sensitive material finds mention in such grounds of arrest recorded by the authorized officer, it would always be open to him to redact such sensitive portions in the document and furnish the edited copy of the grounds of arrest to the arrested person, so as to safeguard the sanctity of the investigation. 39. On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi (supra) and the Bombay High Court in Chhagan Chandrakant Bhujbal (supra), which hold to the contrary, do not lay down the correct law. In the case on hand, the admitted position is that the ED's Investigating Officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants. As this form of communication is not found to be adequa....
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....ny other thing which may furnish evidence of the commission of such offence or from any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under this Chapter is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him to arrest such a person or search such building, conveyance or place whether by day or by night or himself arrest such a person or search a such building, conveyance or place. 43B. Procedure of arrest, seizure, etc.- (1) Any officer arresting a person under section 43A shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under section 43A shall be forwarded without unnecessary delay to the officer-incharge of the nearest police station. (3) The authority or officer to whom any person or article is forwarded under sub-section (2) shall, with all convenient dispatch, take such measures as may be necessary in accordance with the provisions of the Code. THE CONSTITUTION OF INDIA, 1950 ....
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....beyond 24 hours would surely not serve the purpose and would be violative of the fundamental rights of such arrestee. That apart, at the time of seeking remand, the Magistrate is to be informed of the grounds of remand which may, to some extent, include the grounds of arrest and as such, the same cannot be construed to go beyond 24 hours of such arrest. Moreover, communication of the grounds of arrest are zealously protected by Article 22(1) of the Constitution of India and thus, it is incumbent upon Courts of Law, in particular, Constitutional Courts to construe the provisions and balance them in such a manner so as to further the constitutional guarantee envisaged under the Constitution. Thus, in the considered opinion of this Court, the words "as soon as may be" ought to be construed as not beyond 24 hours from the time of such arrest. Another facet of the issue would be the indelible rights of the arrestee/detainee to obtain or seek bail which would be impacted in case such grounds of arrest are not communicated within a reasonable period and the same cannot be countenanced. ii. Section 50 of the Cr.P.C., 1973 also mandates that the arrestee has the right to be communicated ....
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.... that he is a Magistrate and that a remand has been applied, for and he should ask the accused whether he has any objection to offer to the remand. The order granting the remand should be written at the time it is announced, in the presence of the accused. (b) If the accused wishes to be represented by counsel, the Magistrate should allow time for counsel to appear and argue the matter before him. He may grant a temporary remand in such circumstances until arguments have been heard. (ii) Right of accused to access to counsel and friends-The Punjab Government have issued the following instruction in regard to the right of accused to access to counsel and friends :- An accused person should not be removed to a place which is either inaccessible or unknown to his friends or counsel. Information regarding his place of confinement should at all times be given to his friends on their application, and the prisoner himself should be informed that he is entitled to have the assistance of counsel and to communicate with his relations and friends." Rule 12 of Part B of Chapter 11 of DHC Rules, thus, also reiterates the rights of the arrestee to be represented by ....
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....& 43B of UAPA on the other. Thus, though there may be similarity in certain portions of the language, however, the aforesaid provisions of both the statutes cannot be said to be pari materia. 8. That keeping in view the aforesaid, this Court shall now consider the effect of the aforesaid material distinctions in the language of the statutes on the ratio laid down by the Supreme Court in Pankaj Bansal (supra). In the said case, the Supreme Court was considering the effect of section 19(1) & (2) of PMLA and as to the right of an arrestee to be furnished with the written grounds of arrest at the time of arrest. The Apex Court had observed, on facts, that the authorities under PMLA were providing information of grounds of arrest in varied methods, in that, at some places, the grounds of arrest were informed orally and in some places, they were being permitted to be read or were read out and in others, written grounds of arrest were being furnished. After considering the effect of section 19(1) & (2) of PMLA and coming to the conclusion that it was incumbent upon the authorities to record the reasons for arrest in writing as per section 19(1), the Supreme Court held that there was no....
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.... cannot be said to be squarely applicable to a case arising under the provisions of UAPA. 10. It would also be relevant in the above context to consider the Preamble of both the enactments. The same are extracted hereunder:- PREAMBLE OF PMLA "An Act to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. WHEREAS the Political Declaration and Global Programme of Action, annexed to the resolution S-17/2 was adopted by the General Assembly of the United Nations at its seventeenth special session on the twentythird day of February, 1990; AND WHEREAS the Political Declaration adopted by the Special Session of the United Nations General Assembly held on 8th to 10th June, 1998 calls upon the Member States to adopt national money-laundering legislation and programme; AND WHEREAS it is considered necessary to implement the aforesaid resolution and the Declaration." PREAMBLE OF UAPA "An Act to provide for the more effective prevention of certain unlawful activities of individuals and associations ....
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....to financial crimes and may or may not have relation to threats to the stability, sovereignty and integrity of this country. In other words, the sensitivity of the information/intelligence being gathered by the investigating authorities under the UAPA is of a greater significance having direct impact on the issues relating to national security. Thus, the ratio laid down by the Supreme Court in Pankaj Bansal (supra) while relying upon V. Senthil Balaji (supra) which was purely in relation to the provisions of PMLA cannot, by any stretch of imagination, be made applicable, mutatis mutandis, to the cases arising under UAPA. 11. This of course, would not mean that there is no constitutional or statutory obligation enjoined upon the respondent to provide information of grounds of arrest as soon as may be, within 24 hours of such arrest. 12. Thus considering the aforesaid analysis of the law as also the judgements of the Supreme Court, it is held that the grounds of arrest need to be informed to the arrestee within 24 hours of such arrest, however furnishing of such grounds, in written, are not mandated by the UAPA. Keeping in view the law laid down by the Supreme Court in Pankaj B....
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....On perusal of para 10 of the judgment, it is abundantly clear that even under the 1991 Notification which is the main notification, it was stipulated that all development and activities within CRZ will be valid and will not violate the provisions of the 1991 Notification till the management plans are approved. Thus, the intention of legislature while issuing the Notification of 1991 was to protect the past actions/transactions which came into existence before the approval of the 1991 Notification." It is clear from the above law that the factual situation as also the legal proposition presented before the Supreme Court in Pankaj Bansal (supra) was entirely distinct from that in the present case inasmuch as the Supreme Court in the aforesaid case was dealing with and interpreting the provisions of section 19(1) & (2) read with section 45 of the PMLA which, as observed above by this Court are not pari materia with the provisions of section 43A & 43B of UAPA and as such, cannot be made applicable to the present case. In view of the aforesaid conclusion, the issue (a) is answered accordingly. CONTENTIONS ON BEHALF OF THE PEITIONER: - 14. Mr. Kapil Sibal and Mr. Dayan Krishnan,....
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....ra) and In Re Madhu Limaye and Ors, reported in (1969) 1 SCC 292, learned Senior Counsel submit that it was incumbent upon the respondent to have furnished written grounds of arrest to the petitioner and the alleged oral furnishing of grounds of arrest would not be in accordance with the law as declared by the Supreme Court. According to learned Senior Counsel, failure of the above condition would necessarily entail immediate release of the petitioner. 19. So far as the challenge to the remand order is concerned, learned Senior Counsel submit that the same suffers from the following fatal defects:- 19.1 That the petitioner was deprived of having the benefit of a counsel of his choosing at the time when the remand application was being considered, which is violative of not only Article 22(1) of the Constitution of India and Rule 12 of Part B of Chapter 11, apart from the other relevant rules of DHC Rules. 19.2 That the remand order was passed without hearing the objections of the counsel for the petitioner. 19.3 That the remand order was already passed at 06:00 A.M. on 04.10.2023 as noted by the learned Special Judge in the remand order at the place whe....
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....of furnishing written grounds of arrest or release on account of illegal or unlawful order of remand passed by the learned Special Judge. CONTENTIONS ON BEHALF OF THE RESPONDENT:- 21. Mr. Tushar Mehta, learned Solicitor General of India (hereinafter referred to as "learned SG") appears for the respondent and submits that the controversy in the present case revolves around primarily two aspects: i. Whether the arrest is in accordance with law? ii. Whether the order dated 04.10.2023 directing remand of the petitioners to police custody was in accordance with the law, rules and procedures? 21.1 Insofar as the issue regarding arrest of the petitioner is concerned, learned SG referred to the allegations broadly leveled against the petitioner. 21.2 According to learned SG, the offences leveled against the petitioner are in respect of allegations regarding stability and integrity of the country and as such are very serious offences affecting the national security of the entire country. 21.3 Learned SG also submits that the email exchanges between the petitioner and other entities which have been analysed till now indicate a deliberate att....
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....of arrest and further custody are required to be informed to the Magistrate itself in the presence of the arrestee. 21.9 That apart, while referring to Para 15 of the reply, learned SG categorically asserted that the petitioner was indeed virtually informed of the grounds of arrest, apart from the fact that the grounds of arrest were also contained in the Memo of Arrest, though not very detailed. Learned SG also asserted that said Memo of Arrest was signed in acknowledgement by the petitioner and his family member. As such, there being no statutory or constitutional mandate of the manner in which grounds of arrest have to be communicated, the compliance under Article 22(1) and section 43B of UAPA were duly effected as per law. Learned SG also submits that, in any case, the grounds of arrest were virtually mentioned in the application seeking remand itself which was served upon the counsel for the petitioner within 24 hours of his arrest. 21.10 While referring to the provisions of section 19(1) & (2) of PMLA, learned SG submits that the written grounds of arrest are predicated on the reason of such belief of the designated officer which are to be sent to the Adjudi....
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....ding to learned SG, the respondent had in fact communicated the grounds of arrest to the petitioner which is a sufficient compliance of section 43B of UAPA. 21.13 That apart, learned SG also referred to the word "henceforth" as used by the Supreme Court in Pankaj Bansal (supra) in Para 39, to submit that the said direction is prospective and not retrospective. On that basis, he submits that the ratio laid down in Pankaj Bansal (supra) even otherwise would not be applicable to the facts of the present case. In support of the said contention, learned SG referred to the definition contained in Black's Law Dictionary. 21.14 That so far the ratio laid down in In Re Madhu Limaye (supra) is concerned, learned SG submits the same is clearly distinguishable on facts. In that, admittedly the grounds of arrest were never furnished to the petitioners at all, whereas in the present case, the same were duly informed to the petitioner at the time of arrest. To substantiate the above argument, learned SG relied upon Para 1 and particularly Para 9 of the judgement in Re Madhu Limaye (supra). 22. So far as the issue no (ii) in regard to the question of remand is concerned, learn....
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....existence which was to be scrupulously followed. Thus, the ratio in Pankaj Bansal (supra) would be applicable with retrospective effect. 24.3 That the Supreme Court had pronounced the judgement in Pankaj Bansal (supra) in open court on 03.10.2023 and as such, the respondent cannot feign ignorance of law declared by the Supreme Court. According to him, the argument that the respondent was not a party in Pankaj Bansal (supra) is irrelevant, in as much as, no one can be excused on the ground of ignorance of law. 24.4 Learned Senior Counsel vehemently contended that so far as the time as mentioned of 6:00 A.M. in the order of the remand dated 04.10.2023 is concerned, it is indicative of the time when the remand order was passed and not the time when the petitioner was produced before the learned Special Judge. For this, he draws attention to Rule 12(a) of Part B of Chapter 11 of DHC Rules, to submit that the said rule mandates that the Magistrate enters the time when the said remand order is passed and does not even remotely refer to the time when the petitioner is produced. As such, the remand order having been passed at 6:00 A.M., vitiates the order of remand itself....
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....he petitioner that his counsel or family members were not informed about the remand proceedings and it was only at around 7 A.M. when the remand proceedings were getting concluded that he made a request to the learned Special Judge for the presence of his counsel to consult and make submissions on his behalf. It is the contention of the petitioner that at around 7 A.M., his family member was apprised of the remand proceedings on his mobile phone with a request to inform the petitioner's counsel. It is stated that upon receiving such information, the counsel immediately contacted the IO and on being told about the remand proceedings, he immediately objected to the same and requested that he be permitted to reach the residence of learned Special Judge and take part in the remand proceedings physically. 29. The petitioner admits that the remand application was received by his counsel through WhatsApp whereupon the counsel responded that the petitioner would be filing an application for opposing the remand of the petitioner which was sent around 8 A.M. on 04.10.2023 on the IO's phone. Upon the direction of the IO, the said applications were provided to the Naib Court around 8:12 A.M....
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....titioner in his petition. In that, the petitioner himself submits that he was produced before the learned Special Judge between 6-6:30 A.M. and that it was at around 7 A.M. when, according to the petitioner, the remand proceedings were getting concluded, that he sought and was granted permission to contact his counsel through a family member. That apart, as already observed above, the counsel was provided with the remand application as also was heard, though telephonically by the learned Special Judge before passing the remand order. 34. It is also intriguing to note that the petitioner had indeed met his counsel in the evening on 03.10.2023 after he was arrested, yet there is no averment to state that the petitioner or his counsel had objected to such arrest on the ground of not having been informed of the grounds of his arrest. It is intriguing that the petitioner admits to have met his counsel in the evening hours of 04.10.2023 also, albeit, after seeking permission from the learned Special Judge for such meeting, yet, there is no averment on record to demonstrate as to what effective steps were taken by the counsel for the petitioner even after that. This petition was filed ....
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....h violation which are one month or with fine which may extend to rupees two hundred, or with both and the other being imprisonment which may extend to six months or with which may extend to rupees one thousand, or with both. In Madhu Limaye's case it appears there were no orders of disobedience whereof would entail punishment under section 188 I.P.C. As such the case of the petitioner cannot be equated with the case of In Re Madhu Limaye (supra). 38. Keeping in view the gravity and the seriousness of the offences as also considering the fact that the individual right of life and personal liberty and freedom guaranteed under the Constitution of India are affected, it appears appropriate to also consider as to where the Constitutional Courts are to lean, in such circumstances. On this aspect, the judgement of the Supreme Court in Ayya @ Ayub vs. State of U.P. & Another reported in (1989) 1 SCC 374 needs to be appreciated. The relevant paragraph is extracted hereunder:- "13. Personal liberty, is by every reckoning, the greatest of human freedoms and the laws of preventive detention are strictly construed and a meticulous compliance with the procedural safeguards, however t....
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....spect of the impugned remand order, this Court is of the considered opinion that the remand order is sustainable in law in the given circumstances. 41. The petition, being devoid of any merit, along with pending applications, is dismissed. CRL.M.C. 7277/2023 42. By way of the present petition, the Petitioner seeks the following reliefs:- "(A) Issue an order or direction setting aside the order dated 04.10.2023 passed by the court of Dr. Hardeep Kaur, Ld. Additional Sessions Judge-02, Patiala House Court, New Delhi in FIR No. 224 of 223, remanding the Petitioner to police custody; AND (B) Issue an order or direction for immediate release of the Petitioner;......" 40. Facts as culled out from the petition filed by the petitioner commencing from Para 15 of the petition and are germane to the present dispute, are as follows:- "15. It is respectfully submitted that an FIR bearing No. 224/ 2023 was apparently registered on 17.08.2023 against, inter alia, the Petitioner under Sections 13, 16, 17, 18, and 22 of the Unlawful Activities Prevention Act, 1956, (hereinafter the "UAPA") and Sections 153A and 129B of the IPC, at the Police Station, Lodhi Road, ....
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....al rights under Article 22 of the Constitution. 21. Pertinently, the order dated 04.10.2023 passed by the Ld. Sessions Judge erroneously notes that copy of the remand application had already been sent to the Petitioner's counsel. However, no copy of the application was shared with the Petitioner's counsel by the investigating agency. As a result, the Petitioner's counsel was unable to be present at the remand hearing, denying the Petitioner an opportunity to effectively oppose the remand. 22. Subsequently, on 04.10.2023, the Petitioner filed an application seeking directions to the investigating agency to supply a copy of the FIR to the Petitioner, and to provide a copy of the grounds of arrest. The Ld. Special Judge was please to issue notice to the Respondent in the application, but deferred its hearing to 05.10.2023. 23. Thereafter, the counsel for the Petitioner has obtained a copy of the application for remand filed by the Respondent through the counsel of the co-accused." CONTENTIONS ON BEHALF OF THE PARTIES 43. Mr. Rohit Sharma, learned Counsel appearing for the petitioner adopts the arguments of the learned Senior Counsel appearing for the p....
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....n of his constitutional rights under Article 22 of the Constitution. 43.7 Learned counsel in the same breath argues that, the remand order does not even mention the physical circumstances of the present petitioner, and relies upon the judgement of Division Bench of Madras High Court in L. Muruganantham vs. State of Tamil Nadu and Others reported in 2022 SCC OnLine Mad 5879, to submit that the learned Special Judge did not apply his judicial mind to the remand application w.r.t. the specific case of the present petitioner in terms of role attributed to him, reasons for his remand and his physical circumstances being a differently abled person. 43.8 Learned counsel lastly submits that the arrest of the petitioner without supplying the grounds of arrest and the subsequent remand order passed thereof is violative of the constitutional mandate of Article 22(1) of the Constitution of India, and therefore is liable to be set aside and the petitioner is entitled for immediate release. 44. Per Contra, Mr. Tushar Mehta, learned Solicitor General, appearing for the respondent submits that his arguments in CRL.M.C. 7278/2023 on the issues of law and facts may be taken into....
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.... unimaginable that no grievance at all would be made out of an illegal remand order while filing an application seeking a copy of FIR on the very same day when the remand order was passed i.e., 04.10.2023. It is also surprising to note that even at the time of addressing the arguments seeking copy of FIR, there is not even a single argument or a grievance placed by the counsel for the petitioner before the very same learned Special Judge who had passed the impugned remand order dated 04.10.2023, regarding any illegal arrest or illegal remand order. 50. Considering the lack of material particulars on facts it appears necessary to appreciate the law laid in such situations as per the judgements rendered by the Supreme Court which are as under: Moti Lal Songara vs. Prem Prakash and Another reported in (2013) 9 SCC 199 "1. Leave Granted. The factual score of the case in hand frescoes a scenario and reflects the mindset of the first respondent which would justifiably invite the statement "court is not a laboratory where children come to play". The action of the respondent/accused depicts the attitude where one calculatedly conceives the concept that he is entitled t....