TaxTMI 
TaxTMI 
2025 (4) TMI 694
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..... 2. The instant writ petition raises the same question of law in addition to the second question as to whether remand order is amenable to writ jurisdiction specially when statutory indictment is alleged to have been not considered by the learned Magistrate while remanding the accused in police custody or in custody of special investigating agency. 3. Now the facts. 4. In connection with ECIR No. PTZO/04/2024, dated 14th March, 2024 (Directorate of Enforcement, Patna v. Sanjeev Hans and others) an FIR No. 18 of 2023, dated 9th of January, 2023, registered in Rupaspur Police Station, Patna against the above-named Sanjeev Hans, a member of IAS; Gulab Yadav, EX MLA, RJD; and others, ED, conducted raid in the house of Uttam Daga, petitioner herein, to investigate his role in money laundering at premises CF-374 Salt Lake City, Sector-1, Kolkata-700064 on 25th of January, 2025. The officers of DOE conducted search in the house and others places, owned and possessed by the petitioner and during search they had reason to believe on the basis of the materials collected by them that the petitioner is prima facie guilty of committing offence under the Prevention of Money Laundering Act, (....
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.... an illegal detention violative of Articles 21 and 22 (2) of the Constitution of India and Section 187 of the B.N.S.S. (pari materia to Section 167 Cr.P.C.) cannot be validated by an order of judicial remand. c) For directing the Petitioner to be released forthwith in connection with ECIR No. PTZO/04/2024 (hereinafter referred to as the "ECIR") pending before the Court of Learned Sessions Judge cum Special Judge (PMLA) Patna. d) For an ad-interim direction for releasing the Petitioner connection with ECIR No. PTZO/04/2024 (hereinafter referred to as the "ECIR") pending before the Court of Learned Sessions Judge cum Special Judge (PMLA) Patna during the pendency of the instant writ application. e) For any other relief(s) to which the Petitioner may be found entitled to in the facts and circumstances of the case." 9. Mr. Jitendra Singh, learned Senior Counsel appearing on behalf of the petitioner, at the outset, refers to Article 22 of the Constitution of India for the sake of proper adjudication of the case. It is important to reproduce Article 22 of the Constitution of India hereinbelow. "22. Protection against arrest and detention in certain cases (1) No person who is a....
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....use (a) of clause (4) (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4)." 10. Referring to the provisions of Clause (2) of Article 22, it is submitted by Mr. Singh that the requirement of Article 22 (2) that the person arrested must be produced before the nearest Magistrate within a particular time is definitely not tethered to the test of territoriality with reference to the place of commission of offence or the place were the connected criminal case might have been registered. The mandate of the Constitution is that the person arrested and detained in custody in connection with any offence or criminal case that might have been committed or registered even elsewhere will have to produced before the nearest Magistrate i.e., the Magistrate nearest to the place of arrest and detention, irrespective of the question that offence might have been committed or the criminal case might have been registered at a different and far away place within the territorial jurisdiction of another Mag....
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....he arrested person (whether arrested with warrant or without warrant) before the nearest Judicial Magistrate and empowers such Judicial Magistrate, whether he has or has not jurisdiction to try the case to authorize the detention of the accused in proper custody for a trial not exceeding 15 days in the whole, and if such Magistrate has no jurisdiction to try the case or commit it for trial, he may order the accused to be forwarded before a Magistrate having such jurisdiction. This provision, according to Mr. Singh, clearly shows that the nearest Magistrate before whom an arrested person has to be produced in compliance with the mandate of Article 22 (2) as well as of the requirement of Section 187 need not necessarily be the Magistrate having jurisdiction to try the case or commit it for trial. In other words, he tried to impress upon this Court that it is the incumbent duty of the Arresting Officer/Agency to produce an arrested person before the nearest Magistrate. Even if he does not have territorial jurisdiction either to try or commit the case for trial. The provision is contemplated in the Constitution as well as the Cr.P.C., now BNSS, to give an opportunity to the accused at ....
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....tion 187 of the BNSS, Section 58 of the BNSS and other provisions relating to production of accused after arrest within 24 hours, the learned Senior Counsel appearing on behalf of the petitioner first refers to the decision of the Hon'ble Supreme Court in Madhu Limaye and Others, reported in (1969) 1 SCC 292. Paragraph 10 of the said judgment is referred to by learned Senior Counsel for the petitioner with great stress and the same is quoted below:- "10. Article 22 (1) embodies a rule which has always been regarded as vital and fundamental for safeguarding personal liberty in all legal systems where the rule of law prevails. For example, the 6th amendment to the Constitution of the United States of America contains similar provisions and so does article 34 of the Japanese Constitution of 1946. In England whenever an arrest is made without a warrant, the arrested person has a right to be informed not only that he is being arrested but also of the reasons or grounds for the arrest. The House of Lords in Christie v. Leachinsky [[1947] A.C. 573 : (1947) 1 All ELR 567] went into the origin and development of this rule. In the words of Viscount Simon if a policeman who entertained a re....
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....311 (2) of the Constitution of India which states that no person in the service under the Union and the States shall be dismissed or removed or reduced in rank, except after an inquiry, in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. In other words, without departmental inquiry by formulation of articles of charge and giving opportunity to the delinquent employee of being heard, he shall not be dismissed, removed or reduced in rank. While interpreting Article 311 (2) of the Constitution, the Hon'ble Supreme Court held in paragraph 70 as hereunder: "70. The position which emerges from the above discussion is that the keywords of the second proviso govern each and every clause of that proviso and leave no scope for any kind of opportunity to be given to a government servant. The phrase "this clause shall not apply" is mandatory and not directory. It is in the nature of a constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Article 311 (2) or from giving any kind of opportunity to the concerned government servant. There is thus no scope for in....
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.... fulfilment of each of the following conditions " 23. While interpreting Para 10 A of the said order in the light of the other provision, the Hon'ble Supreme Court held as hereunder:- "28. This Court in Philips India Ltd. v. Labour Court [(1985) 3 SCC 103 : 1985 SCC (L&S) 594] observed in para 15 as under: (SCC p. 112) "15. No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as 'elementary rule' (see Attorney General v. Bastow [(1957) 1 QB 514 : (1957) 2 WLR 340 : (1957) 1 All ER 497] ) and as a 'settled rule' (see Poppatlal Shah v. State of Madras [(1953) 1 SCC 492 : AIR 1953 SC 274 : 1953 SCR 677]). The only recognised exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke [Ed.: In Lincoln College case, (1595) 76 ER 764 : 3 Co. Rep 58b] laid down that: 'it is most natural and genuine exposition of a statute, to constr....
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....a candidate set up by the State party shall chose and shall be allotted only the symbol allotted to that party and no other symbol. Para 8(3) provides that a reserved symbol shall not be chosen by or allotted to any candidate other than a candidate set up by the national party or a State party for whom such symbol has been reserved. The provision is extremely clear. Dr. Swamy, however, wanted us to create a third category as has been stated earlier. That is not possible. If the arguments were to be accepted, then we would have to read something which is not there in the provisions and this includes Paras 5, 6 and 8 as also the impugned Para 10-A. Such an exercise would amount to this Court treading dangerous path of legislature. We do not think that such a course is possible. We are, therefore, not inclined to accept that argument." 24. Mr. Singh, learned Senior Counsel for the petitioner, next refers to the case of Vinubhai Mohanlal Dobaria v. Chief Commissioner of Income Tax & Anr., reported in 2025 SCC Online SC 270 to contend that Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employe....
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....w of doctrine of merger while disposing of the issues in the instant case. Therefore, this Court refrains from dealing with the submission made by Mr. Singh in this regard. 27. Similar principle, laid down in the decision of Manisha Nimesh Mehta v. Board of Directors, reported in (2024) 9 SCC 573, is also not applicable in the instant case. 28. Mr. Singh next refers to the decision rendered in Priya Indoria v. State of Karnataka & Ors., reported in (2024) 4 SCC 749. In this case, the Hon'ble Supreme Court held that it is permissible to grant extra territorial transit or interim anticipatory bail for an offence committed outside the territorial jurisdiction of the High Court or Court of Sessions. It is held by the Hon'ble Supreme Court in Priya Indoria (supra) that if a person commits an offence in one State and the FIR is lodged within the jurisdiction where the offence was committed but the accused resides in another State, he can approach the Court in the other State and seek transit anticipatory bail of limited duration. It was also held by the Hon'ble Apex Court that the accused could approach the competent Court in the State where he is residing or is visiting for a legitima....
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....ollows: - "147. The scheme of the law (CrPC) is that when a person is arrested without warrant in connection with a cognizable offence, investigation is expected to be completed within 24 hours from his arrest. If the investigation is not completed, as is ordinarily the case, the accused must be produced before the Magistrate who is nearest from the place of arrest irrespective of whether he is having jurisdiction or not. The Magistrate on the basis of the entries in the case diary maintained by the officer is expected to apply his mind and decide whether the accused is to be remanded or not. If the police makes a request for police custody which is accepted then an order is to be passed and reasons are to be recorded under Section 167 (3). Police custody is an important tool in appropriate cases to carry on an effective investigation. It has several uses. It includes questioning the accused with reference to the circumstances, and obtaining if possible, statements which are relevant in the future prosecution. Custodial interrogation in some cases is clearly a dire need to give a prosecution and therefore the courts a complete picture. The contention of the appellant that it is a....
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.... bearing in mind that the interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which would defeat or was likely to defeat the purpose of the Act has to be ignored and not accepted. 37. In support of his contention, he refers to the case of National Insurance Company Limited and Anr. v. Kripal Singh, reported in (2014) 5 SCC 189. 38. The learned Sr. Advocate appearing on behalf of the petitioner next refers to the case of Pankaj Bansal v. Union of India & Ors., reported in (2024) 7 SCC 576. 39. In Pankaj Bansal (supra), the only issue for consideration before the Hon'ble Supreme Court was whether the arrest of the appellant under Section 19 of the PMLA was valid and lawful, and whether the impugned orders of remand passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, measure up. The Hon'ble Supreme Court held that mere passing of an order of remand would not be sufficient in itself to validate the appellants' arrests, if such arrests are not in conformity with the requirements of Section 19 PMLA. Though judgme....
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....place be attending in any manner to, or helping in, such act so as to,- (i) afford him the necessary facility to inspect such records as he may require and which may be available at such place; (ii) afford him the necessary facility to check or verify the proceeds of crime or any transaction related to proceeds of crime which may be found therein; and (iii) furnish such information as he may require as to any matter which may be useful for, or relevant to, any proceedings under this Act. Explanation-For the purposes of this sub-section, a place, where an act which constitutes the commission of the offence is carried on, shall also include any other place, whether any activity is carried on therein or not, in which the person carrying on such activity states that any of his records or any part of his property relating to such act are or is kept. (2) The authority referred to in sub-section (1) shall, after entering any place referred to in that sub-section immediately after completion of survey, forward a copy of the reasons so recorded along with material in his possession, referred to in that sub-section, to the Adjudicating Authority in a sealed envelope, in the manner ....
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....er making such order, and a copy of such order shall be served on the person concerned: Provided that if, at any time before its confiscation under sub-section (5) or sub-section (7) of section 8 or section 58B or sub-section (2A) of section 60, it becomes practical to seize a frozen property, the officer authorised under sub-section (1) may seize such property.] (2) The authority, who has been authorised under sub-section (1) shall, immediately after search and seizure 3 [or upon issuance of a freezing order], forward a copy of the reasons so recorded along with 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 reasons and material for such period, as may be prescribed. (3) Where an authority, upon information obtained during survey under section 16, is satisfied that any evidence shall be or is likely to be concealed or tampered with, he may, for reasons to be recorded in writing, enter and search the building or place where such evidence is located and seize that evidence: Provided that no authorisation referred to in sub-sect....
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....is of material in his possession, "reason to believe" (the reason for such believe to be recorded in writing) that any person has been guilty of an offence punishable under this Act. It is also the bounden duty of the concerned officer to inform him of the grounds of such arrest. So there are two preconditions contained in Section 19 before arresting a person. The Authorized officer on the basis of the material in his possession must have the reason to believe that the person has been guilty of an offense punishable under this act. Secondly, such reason to believe shall be recorded in writing and thirdly the arrested person shall be informed forthwith the grounds of arrest. 46. In the instant case, it is contended by the Learned Senior Counsel for the petitioner that the Learned Chief Judicial Magistrate, who remanded the petitioner to the custody of DOE, failed to consider as to whether fundamental requirements of Section 19 of the PMLA was complied with or not. 47. Section 46 of the PMLA states that the provisions of CrP.C., now BNSS, shall apply to the proceedings before the Special Court, and for such purpose a Special Court shall be deemed to be a Court of Session. Thus, the....
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.... is completely illegal and it infringes fundamental rights under Clause (2) of Article 22 of the Constitution of India. Therefore, his arrest gets vitiated on completion of 24 hours in custody. Since there is a violation of Article 22 (2) of the Constitution of India. Even this fundamental right to liberty, guaranteed under Article 21, has been violated. 52. Mr. Zoheb Hossain, the learned Special Public Prosecution on behalf of the DOE, first refers to the relevant portion of the constitutional debate with regard to introduction of Article 15A, which is now Article 22, and the following excerpt of the reply of Dr. B. R. Ambedkar is placed before this Court with great relevance and command. The relevant paragraph runs thus:- "Now, Sir, I come to clause (2). The principal point is that raised by my Friend Mr. Pataskar. So far as I was able to understand, he wanted to replace the word "Magistrate" by the words "First class Magistrate". Well, I find some difficulty in accepting the words suggested by him for two reasons. We have in clause (2) used very important words, namely, "the nearest Magistrate" and I thought that was very necessary because otherwise it would enable a police o....
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.... but the constitutional requirement is to produce the accused before a Magistrate either nearest to his place of arrest or if possible before the Magistrate having territorial jurisdiction to deal with the accused. The dispute is not on the terms of "nearest Magistrate" and the "Jurisdictional Magistrate". The fundamental and statutory right of an accused rest on his right to be produced within 24 hours. If any other meaning is tried to be introduced by judicial pronouncements, this will make the obligation of the arresting agency to produce an accused within 24 hours otiose. 55. Referring to the decision of the Hon'ble Supreme Court in the case of S. R. Chaudhuri v. State of Punjab & Ors., reported in (2001) 7 SCC 126, it is contended by the Mr. Hossain that the debates of the constituent assembly may be relied upon as an aid to interpret a constitutional provision. 56. In this regard, this Court reminds the beautiful observation made by the Hon'ble Mr. Justice V.R. Krishna Iyer, in the case of Samsher Singh v. State of Punjab & Anr., reported in (1974) 2 SCC 831 at paragraph 104, which reads as hereunder:- "104. Not the Potomac, but the Thames, fertilises the flow of the Yamu....
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.... Independent of the above, we are clearly of the view that the expression "and" occurring in Section 3 has to be construed as "or", to give full play to the said provision so as to include "every" process or activity indulged into by anyone. Projecting or claiming the property as untainted property would constitute an offence of money-laundering on its own, being an independent process or activity. (c) The interpretation suggested by the petitioners, that only upon projecting or claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected. (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the perso....
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....he Court concerned and by the Authority concerned in accordance with the interpretation given in this judgment. (xiii) (a) The reasons which weighed with this Court in Nikesh Tarachand Shah706 for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form. (b) We are unable to agree with the observations in Nikesh Tarachand Shah707 distinguishing the enunciation of the Constitution Bench decision in Kartar Singh708; and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, including about it posing serious threat to the sovereignty and integrity of the country. (c) The provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act and does not suffer from the vice of arbitrariness or unreasonableness. (d) As regards the pr....
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....ng information on its website which may broadly outline the scope of the authority of the functionaries under the Act and measures to be adopted by them as also the options/remedies available to the person concerned before the Authority and before the Special Court. (xx) The petitioners are justified in expressing serious concern bordering on causing injustice owing to the vacancies in the Appellate Tribunal. We deem it necessary to impress upon the executive to take corrective measures in this regard expeditiously. (xxi) The argument about proportionality of punishment with reference to the nature of scheduled offence is wholly unfounded and stands rejected." 58. It is also contended by Mr. Hossain, learned Special Public Prosecutor appearing on behalf of D.O.E that Madhu Limaye Case (supra) is distinguishable on facts because there the petitioner was arrested for having committed a non-cognizable offence without any FIR having been recorded and was not informed on the grounds of arrest. Therefore, judicial intervention under Articles 226 and 32 of the Constitution were warranted only in exceptional cases, where on arrest a detention is found to be mala fide, influenced by ex....
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....r the PMLA. A conjoint reading of the above-stated provisions of PMLA, Cr.P.C. and BNSS mandates DOE to produce an accused before the nearest Magistrate within 24 hours of his arrest. 63. It is further argued by Mr. Hossain that the nearest Magistrate may be a Magistrate having territorial jurisdiction or a Magistrate having extra territorial jurisdiction. It is incumbent upon the arresting authority to produce an accused before the nearest Magistrate within 24 hours. If the arresting authority finds that it would not be possible to produce the accused before the jurisdictional Magistrate went to long distance between the place of arrest and the place of having jurisdiction to try the case. When the arresting authority considers that the arrested person cannot be produced within 24 hours of his arrest before the jurisdictional Magistrate, considering the time of travel required for production of the accused before him, it is obligatory for the arresting officer to produce him before the nearest Magistrate. However, if the arresting officer finds that he could be produced before the jurisdictional Magistrate within 24 hours of his arrest, such production cannot be questioned in the....
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....t on Section 19 of the PMLA with reference to the decisions rendered by the Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra), Senthil Balaji (supra) and Arvind Kejriwal v. Directorate of Enforcement, reported in 2024 SCC OnLine SC 1703. 72. In paragraph 39 of Arvind Kejriwal (supra), Hon'ble Supreme Court had an occasion to deal with the scope and ambit of judicial review to be exercised by the Court. The Hon'ble Supreme Court held that judicial review does not amount to a mini trial or a merit review. The exercise is confined to ascertain whether reasons to believe are based upon material which established that the arrestee is guilty of an offence under the PMLA. If adequate and due care is taken by the DOE to ensure that the reasons to believe justified the arrest in terms of Section 19 (1) of the PMLA, the exercise of power of judicial review would not be a cause of concern. Doubts will only arise when the reasons recorded by the authority are not clear and lucid and therefore a deeper and in-depth scrutiny is required. Now, it is also held by the Hon'ble Supreme Court that if the remand Magistrate fails to consider, the parameters of Section 19 in conn....
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....akhs each were received by Pushpraj Bajaj (Accused No. 5) and Sunita Bajaj, with the intent to layer and conceal the proceeds of crime, thereby projecting it as untainted. M/s Prerna Smart Solutions Rs. 1 Crores on 01.03.2024 M/s Mining & Engineering Corp (Business conducted by Uttam Daga) Rs. 95 Lakhs on 01.03.2024 M/s Jagannath Financial (An entity owned by Uttam Daga) Rs. 47.5 Lakhs on 01.03.2024 Rs. 47.5 Lakhs on 01.03.2024 Pushpraj Bajaj Sunita Baja 75. While concluding his argument, Mr. Hossain submits that there is a well-known maxim that an act of Court prejudices none. 76. Mr. Singh, learned Sr. Counsel appearing on behalf of the petitioner strenuously argued that arrest of the petitioner by DOE was premeditated in view of the fact that the DOE conducted search and raid in the house of the petitioner and almost simultaneously with the beginning of search, the DOE purchased air ticket in the name of Uttam Daga, petitioner herein, at about 08.35 a.m. on the same date for the Indigo Flight to Patna which started at 05.40 p.m. from Kolkata, so before search, before forming any opinion under Section 19 of the PMLA, DOE decided to arrest the petitioner. 77. In this ....
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....6 of the Constitution of India on the following grounds: - (i) When it violates the principles of natural justice; (ii) When it is based on irrelevant and inadmissible evidence; (iii) When the order is arbitrary or capricious; (iv) When it amounts to misuse of power by the Lower Court; (v) When the order does not consider the specific circumstances of the case; and (vi) Last but not the least when the order of rejection of bail is based in violation of the fundamental rights enshrined under the Constitution of India. 84. In such cases, the petitioner can not only challenge the impugned order of remand by way of rejection of bail praying for a writ of certiorari or mandamus, but also pray for writ in the nature of habeas corpus. 85. However, the alternative relief of the petitioner lies in approaching the Special Court or the High Court for grant of bail. 86. In Neelam Manmohan Attavar v. Manmohan Attavar reported in (2021) 16 SCC 536, the Hon'ble Supreme Court held that when an alternative efficacious relief is available to the accused, extraordinary jurisdiction under Article 226 of the Constitution is not applicable. Paragraph No. 11 is relevant for the purpose and....
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....rson, could not be a matter of judicial review. 10. It hardly needs to be reiterated that the power of judicial review over the subjective satisfaction or opinion of the statutory authority would have different facets depending on the facts and circumstances of each case. The criteria or parameters of judicial review over the subjective satisfaction applicable in Service related cases, cannot be made applicable to the cases of arrest made under the Special Acts. The scrutiny on the subjective opinion or satisfaction of the authorized officer to arrest the person could not be a matter of judicial review, in as much as when the arrest is made by the authorized officer on he having been satisfied about the alleged commission of the offences under the special Act, the matter would be at a very nascent stage of the investigation or inquiry. The very use of the phrase "reasons to believe" implies that the officer should have formed a prima facie opinion or belief on the basis of the material in his possession that the person is guilty or has committed the offence under the relevant special Act. Sufficiency or adequacy of the material on the basis of which such belief is formed by the a....
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....on of person arrested for a term not exceeding 15 days in a whole. Where he has no jurisdiction to try the case and he finds further detention unnecessary, he may order the accused to be produced before the Jurisdictional Magistrate. This principle is elaborately dealt with in Gautam Navlakha (supra). The issue was decided by the Hon'ble Supreme Court and this Court has already referred to paragraph 102 of the Supreme Court's judgment in Gautam Navlakha (supra) that the nearest Magistrate may or may not have the jurisdiction to try the case. Conversely, this Court shall not commit any wrong to held that if the arresting officer has the scope to produce the arrested person before the jurisdictional Magistrate within 24 hours for an order of remand, requirement of Article 22 (2) cannot be said to be violated. 91. In Sat Parkash Yadav (supra), it is held by the Division Bench of the Delhi High Court that any person who is arrested outside the district or outside the State is produced before the Chief Judicial Magistrate / Chief Metropolitan Magistrate for obtaining the transit remand. The purpose of transit remand is to get sufficient time to produce the accused before the concerned ....