TaxTMI 
TaxTMI 
2025 (6) TMI 195
X X X X Extracts X X X X
X X X X Extracts X X X X
....ther to set aside the remand order dated 30.01.2025(Annexure P-14) and all other subsequent orders passed by the Ld. Special court, Shimla for extending the custody of the petitioner. 2. Issue any other order, writ or direction as this Hon'ble Court may deem fit in accordance with the peculiar and circumstances of the case. 3. Exempt the Petitioner from filing the Certified/true typed/photocopies / more legible copies of the annexures. 4. Summon the entire record pertaining to the case, if this Hon'ble Court deems fit and proper. 5. Service of advance notices upon the Respondent Department be also be dispensed with; 6. Award cost of thee petition in favour of the petitioner and against the respondents." 2. The case of the petitioner is that an FIR bearing No. RC0962019A0002 was registered by the Central Bureau of Investigation (CBI) on 07.05.2019, for commission of offences punishable under Sections 409, 419, 465, 466 and 471 of the Indian Penal Code against unknown persons. 3. After the lodging of FIR, CBI conducted searches and seizure at 22 educational institutions, including the Himalayan Group of Professional Education....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Thereafter, no summons were issued to the petitioner or received by him until 30.01.2024, on which date, he was arrested by the officers of the respondent in an illegal manner. 5. It is further the case of the petitioner that in the year 2024, the investigation was assigned to Vishal Deep, Assistant Director, Enforcement Directorate. Said officer started abusing his official position and unlawfully demanded a bribe of Rs.60.00 Lac from petitioner's brother Rajnish Bansal, under the threat of arresting him. Rajnish Bansal refused to oblige Vishal Deep and reported the matter to the Central Bureau of Investigation. Upon verification of the allegations, CBI registered FIR No. RC0052024A0034, dated 22.12.2024, under Section 7(a) of the Prevention of Corruption Act, 1988 (hereinafter to be referred as the "the PC Act"). Thereafter, a trap was laid following the recording of the incriminating conversations between Rajnish Bansal and Vishal Deep. However, during the trap operation, Vishal Deep managed to evade the arrest and fled from the scene. Subsequent investigation led to the recovery of money from one Yash Deep, a close associate of Vishal Deep, to whom, he had handed over the b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te violation of his legal rights. No due process was followed before effecting his arrest. Copy of the arrest order, arrest memo and grounds of arrest alongwith reasons to believe and panchnama are placed on record as Annexures P-7 to P-11. 6. Learned Senior Counsel for the petitioner argued that the arrest of the petitioner on 30.01.2025, besides being an act of vengeance, was in complete derogation of the provisions of Section 19 of the PMLA. Learned Senior Counsel argued that after the complaint was filed against the petitioner under the PMLA, from the year 2019 up to the date of his arrest, he was called for the purpose of investigation only once. The petitioner not only fully participated in the investigation, but he fully cooperated in the same. He submitted that it is not understood what transpired in between 29.01.2025 and 30.01.2025, that the respondents without allowing the petitioner to respond to the notice dated 29.01.2025, arrested him on 30.10.2025 abruptly. Learned Senior Counsel further submitted that the procedure prescribed in Section 19 of the PMLA is sacrosanct and any violation thereof cannot cure the arrest of an accused. In the present case, he submitted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Vice chairman in the Apex Group of Institutions as well as Himalayan Group of Professional Educational Institutions. He had signed the claim letter and forwarded the claim letters and verified the claim details of the students of said two institutions to the Director of Higher Education for the purpose of disbursal of the scholarship in the name of bogus Scheduled Caste/Scheduled Tribe/OBC students. Learned Counsel further submitted that a perusal of the 'reasons to believe' clearly demonstrates that Arresting Officer, who was duly authorized officer under Section 19 (1) of the PMLA, elaborately referred to the material available with him, which clearly proved the involvement of the petitioner in the predicate offence as well as offences under PMLA. He argued that there was no violation of the provisions of Section 19 of the PMLA and the same were followed sacrosanctly. He submitted that provisions of Section 19 (1) of the PMLA were religiously followed by the Arresting Officer and in light of the law declared by Hon'ble Supreme Court of India, as this is not the fora where the satisfaction of the Arresting Officer is to be tested on merit as the, arrest of the petitioner was str....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned. Learned counsel further submitted that otherwise also, in terms of the statutory provision, in the absence of the Special Judge, who was on vacation, the remand could have been taken from the Judicial Magistrate in terms of Sub-section (3) of Section 19 of the PMLA, 2002 and the Judicial Magistrate, who granted the custody, was having jurisdiction in the matter, as the ECIR was registered at Shimla. Learned counsel also submitted that in terms of the law laid down by the Hon'ble Supreme Court in Rana Ayyub Vs. Directorate of Enforcement, 2023 SCC OnLine SC 109, Enforcement Department has the choice to file the prosecution complaint at every such place where the offence had been committed and the act of the Enforcement Department to produce the petitioner before the concerned Judicial Magistrate was in compliance with the provisions of Article 22 (2) of the Constitution of India, which requires production of an accused within 24 hours of his arrest. 8. I have heard learned Senior Counsel for the petitioner as well as learned Special Counsel for the respondent and have also carefully gone through the pleadings as well as documents appended therewith. 9. Primarily, the issu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ereof demonstrates that the 'Arrest Order' and 'Arrest Memo' were duly supplied to the petitioner. The 'Intimation of Arrest' is also on record and the intimation was given on 30.01.2025 itself to the wife of the petitioner. 11. The 'reasons to believe' mention, inter alia, that an FIR was registered on 07.05.2019 under Sections 409, 419, 465,466 and 471 of the Indian Penal Code against unknown persons. CBI conducted searches and seizures at 22 private institutions, including Himalayan Group of Professional Institutions and Apex Group of Institutions, which had applied and received Post Matric Scholarship Scheme for SC/ST/OBC students of Himachal Pradesh. Vikas Bansal was arrested by the Central Bureau of Investigation on 08.04.2022 during the course of investigation. He was released on bail by this Court on 09.05.2022, subject to fulfilment of certain conditions. Challan No. 4 in the said FIR was filed on 18.04.2022 by the Central Bureau of Investigation under Section 120-B read with Sections 409 and 471 of the Indian Penal Code and under Section 13 (2) read with Section 13 (1) (c) and (d) of the Prevention of Corruption Act, 1988, in which, Rajnish Bansal, Chairman of Apex Gro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nst Apex Group of Professional Institutions reads as under:- "(a) That AGPI is managed by People Welfare Education Trust registered at Karnal, Haryana. (b) That Rajnish Bansal was the Chairman and Vikas Bansal was the Vice Chairman of AGPI. (c) That CBI selected 46 random students belonging to SC/ST/OBC in respect of whom scholarship was claimed under PMS Scheme by AGPI. (d) These 46 random students were examined and their statements were recorded by CBI. It was found that none of them was aware about AGPI and they never took nor applied for any scholarship. (e) That bank accounts in the name of students were opened at OBC Bank at Naraingarh, Ambala and Union Bank of India at Indri, Karnal without the knowledge of students; (f) That AGPI was affiliated to Kurukshetra University and Haryana State Board of Technical Education. The details of students enrolled at AGPI received from Kurukshetra University and Haryana State Board of Technical Education revealed that none of the students was registered with the respective board/university. (g) That Apex Group had fraudulently claimed an amount of Rs. 3,79,95,870/- as scholars....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the Banks concerned. The first student of AGPI, whose statement was recorded under Section 50 of the PML Act on 13.01.2025 stated that he never enrolled himself and never studied any course from AGPI. When he was shown scholarship form filed in his name on HP-ePass Portal, he stated that he never filled any scholarship form on HP-ePass Portal and that the mobile number on said form did not belong to him. He further stated that he was not aware of the bank account opened in his name in Oriental Bank of Commerce at Narain Garh, Ambala. Analysis of the bank account statement revealed that scholarship amount of Rs. 58,820/- was credited in said bank account on 05.09.2016 from DoHE, Himachal Pradesh and Rs. 58,000/- were withdrawn in cash on 07.09.2016. He further stated that he was not aware of any such withdrawal. Similar statements were recorded by the other students also on 13.01.2025 and thereafter. Investigation under PMLA revealed that Maa Saraswati Education Trust, wherein, Vikas Bansal is Trustee, had received scholarship amounts under PMS from SC/ST/OBC students in Bank Accounts of Punjab National Bank, Kala Amb, Sirmaur, H.P. and in the bank account of Oriental Bank of Comme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d People Welfare Education Trust. The scholarships received from students or scholarship amount received directly from the DoHE, Himachal Pradesh for Maa Saraswati Educational Trust and People Welfare Education Trust were utilized for salaries, college expansion, University/Board fees and loan repayments for the construction of buildings for HGPI. As per 'Reasons to Believe', there was sufficient evidence on record which clearly demonstrated that above specified offences were perpetually committed with full disregard to the process of law, with an intention to launder Proceeds of Crime. Vikas Bansal actively involved himself in acquiring Proceeds of Crime. During investigation in ECIR concerned, four persons, namely, Arvind Rajta (Officer of DoHE), Hitesh Gandhi (Vice Chairman KC Group of Institutions), Rajdeep Singh and Krishan Kumar (ASAMS Group of Institutions) were earlier arrested under Section 19 of the PML Act. Vikas Bansal was in possession of Proceeds of Crime from all the above means, which required clear elicitation of facts and confronting the evidences gathered during the course of investigation. Vikas Bansal had evidence in his exclusive possession and could very well....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ation and also in order to: I. Trace out the diverted funds which are proceeds of crime. II. Prevent him from influencing the persons acquainted with crucial information and witnesses. III. Confront him during custodial interrogation with various records, statements, witnesses and accused persons involved in the offence of money laundering. IV. Identify other persons involved in the offence of money laundering. V. Prevent further layering and concealing of the Proceeds of Crime. VI. Prevent further tampering and destruction of evidence." The grounds of arrest are also on record with the reply as Annexure P-2. 19. As already observed by me hereinabove, the requirement of Section 19 (1) of the 2002 Act is that the Arresting Officer may arrest a person under Section 19 supra provided that he, on the basis of material in his possession, has 'reasons to believe', which shall be recorded in writing that any person is 'guilty' of an offence punishable under this Act. 20. At this stage, this Court would like to dwell upon the judgments of the Hon'ble Supreme Court, as were cited before the Court by learned counsel for the parti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... with the consequences. It is his bounden duty to record the reasons for his belief in coming to conclusion that a person has been guilty and therefore, to be arrested. Such a safeguard is meant to facilitate an element of fairness and accountability. ... .... ... ... ... ... ... .... 74. We have already touched upon the mandatory function that a Magistrate is 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 Cr.PC, 1973 is not applicable, then there is no role for the Magistrate either to remand or otherwise. 75. Such a Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the PMLA, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction. 97.9. Section 167 of the Cr.PC, 1973 is a bridge between liberty and investigation performing a fine balancing act. 97.10. The decision of this Court in Anupam J. Kulkarni, as followed subsequently requires reconsideration by a reference to a larger Bench." 22. In Pankaj Bansal vs. Union of India and others, (2024) 7 Supreme Court Cases 576, Hon'ble Supreme Court of India has been pleased to hold as under:- "16. Though much was stated and argued by both sides on the merits of the matter in terms of the involvement of the appellants in the alleged offence of money laundering, we make it clear that we are not concerned with that issue at this point. The only issue for consideration presently is whether the arrest of the appellants under Section 19 of the Act of 2002 was valid and lawful and whether the impugned orders of remand passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, measure up. In that context, we may also make it clear that the mere passi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... fairness, objectivity and accountability of the authorized officer in forming an opinion, as recorded in writing, regarding the necessity to arrest the person involved in the offence of money laundering. The Bench also noted that it is the obligation of the authorized officer to produce the person so arrested before the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, within 24 hours and such production is to comply with the requirement of Section 167 Cr.P.C. It was pointed out that there is nothing in Section 19 PMLA which is contrary to the requirement of production under Section 167 Cr.P.C and being an express statutory requirement under Section 19 (3) PMLA, it has to be complied by the authorized officer. It was concluded that the safeguards provided in the Act of 2002 and the preconditions to be fulfilled by the authorized officer before effecting arrest, as contained in Section 19 PMLA, are equally stringent and of higher standard when compared to the Customs Act, 1962, and such safeguards ensure that the authorized officers do not act arbitrarily, by making them accountable for their judgment about the necessity to arrest any person inv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ept in mind by the Magistrate while passing the judicial order. This Court reiterated that Section 19 PMLA, supplemented by Section 167 Cr.P.C., provided adequate safeguards to an arrested person as the Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the Act of 2002. It was held that the Magistrate is under a bounden duty to see to it that Section 19 of the Act of 2002 is duly complied with and any failure would entitle the arrestee to get released. It was pointed out that Section 167 Cr.P.C is meant to give effect to Section 19 of the Act of 2002 and, therefore, it is for the Magistrate to satisfy himself of its due compliance by perusing the order passed by the authority under Section 19 (1) PMLA and only upon such satisfaction, the Magistrate can consider the request for custody in favour of an authority. To put it otherwise, per this Court, the Magistrate is the appropriate authority who has to be satisfied about the compliance with safeguards as mandated under Section 19 PMLA. In conclusion, this Court summed up that any non-compliance with the mandate of Section 19 of the Act of 2002, would enure to the benefit of the pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... and appears to be a continuation thereof, as indicated by the word 'further', and is not a recording by the learned Judge of his own satisfaction to that effect. 26. This chronology of events speaks volumes and reflects rather poorly, if not negatively, on the ED's style of functioning. Being a premier investigating agency, charged with the onerous responsibility of curbing the debilitating economic offence of money laundering in our country, every action of the ED in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play in action. The ED, mantled with far-reaching powers under the stringent Act of 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and with the highest degree of dispassion and fairness. In the case on hand, the facts demonstrate that the ED failed to discharge its functions and exercise its powers as per these parameters. 27. In this regard, we may note that, though the appellants did not allege colourable exercise of power or mala fides or malice on the part of the ED officials, they did assert in categorical terms that their a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....requires the authorized officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19 (1), to the Adjudicating Authority in a sealed envelope. Though it is not necessary for the arrested person to be supplied with all the material that is forwarded to the Adjudicating Authority under Section (2), he/she has a constitutional and statutory right to be 'informed' of the grounds of arrest, which are compulsorily recorded in writing by the authorized officer in keeping with the mandate of Section 19 (1) PMLA. As already noted hereinbefore, It seems that the mode of informing this to the persons arrested is left to the option of the ED's authorized officers in different parts of the country, i.e., to either furnish such grounds of arrest in writing or to allow such grounds to be read by the arrested person or be read over and explained to such person. 45. On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19 (1) PMLA 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 arr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cision in V. Senthil Balaji has also examined the interplay between Section 19 of the PML Act and Section 167 of the Code. The magistrate is expected to do a balancing act as the investigation is to be concluded within 24 hours as a matter of rule. Therefore, the investigating agency has to satisfy the magistrate with adequate material on the need for custody of the arrestee. Magistrates must bear this crucial aspect in mind while examining and passing an order on the DoE's prayer for custodial remand. More significantly, the magistrate is under the bounden duty to ensure due compliance with Section 19 (1) of the PML Act. Any failure to comply would entitle the arrestee to be released. Section 167 of the Code, therefore, enjoins upon the magistrate the necessity to satisfy due compliance of the law by perusing the order passed by the authority under Section 19 (1) of the PML Act. Upon such satisfaction, the magistrate may consider the request for custodial remand. 14. Pankaj Bansal reiterates V. Senthil Balaji to hold that the magistrate/court has the duty to ensure that the conditions in Section 19 (1) of the PML Act are duly satisfied and that the arrest is valid and law....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounds of arrest flows from Article 22 (1) of the Constitution and any infringement of this fundamental right vitiates the process of arrest and remand. The fact that the chargesheet has been filed in the matter would not validate the otherwise illegality and unconstitutionality committed at the time of arrest and grant of remand custody of the accused. Reference is also made to the principle behind Article 22 (5) of the Constitution. Thus, this Court held that not complying with the constitutional mandate under? Article 22 (1) and the statutory mandate of the UAPA, on the requirement to communicate grounds of arrest or grounds of detention, would lead to the custody or detention being rendered illegal. 17. In Vijay Madanlal Choudhary v. Union of India, a three Judge Bench of this Court distinguished between the stringent requirements stipulated in Section 19 (1) of the PML Act, and the power of arrest given to the police in cognizable offences under Section 41 of the Code. Reference was made to Section 104 of the Customs Act, 1962, which was elucidated and considered by the Constitution Bench of this Court in Ramesh Chandra Mehta vs. State of W./B., and in Union of India v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of giving reasons for exercise of power by itself excludes chances of arbitrariness. Further, in Sukhwinder Pal Bipan Kumar 20, the court restated the position that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. Additionally, the Central Government has framed Rules under Section 73 in 2005, regarding the forms and the manner of forwarding a copy of order of arrest of a person along with the material to the Adjudicating Authority and the period of its retention. In yet another decision in Ahmed Noormohmed Bhatti, this court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan)." 20. We respectfully agree with the ratio of the decisions in Pankaj Bansal) and Prabir Purkayastha 10, which enrich and strengthen the view taken in Vijay Madanlal Choudhary), on the interpretation of Section 19 of the PML Act. Power to arrest a person without a warrant f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o arrest is not exempt from the scrutiny of courts. The power of judicial review remains both before and after the filing of criminal proceedings/prosecution complaint. It cannot be said that the courts would exceed their power, when they examine the validity of arrest under Section 19 (1) of the PML Act, once the accused is produced in court in terms of Section 19 (3) of the PML Act." 27. In the present case, we are examining Section 19 (1) of the PML Act and the rights of the accused. We are not concerned with the ECIR. The relevant question arising is - whether the arrestee is entitled to be supplied with a copy of the "reasons to believe"? Paragraph 89 in Vijay Madanlal Choudhary (supra) refers to the importance of recording the "reasons to believe" in writing, and states this is mandatory. Further, both Pankaj Bansal (supra) and Prabir Purkayastha (supra) hold that the failure to record "reasons to believe" in writing will result in the arrest being rendered illegal and invalid. Paragraph 131 of Vijay Madanlal Choudhary (supra), which has been quoted subsequently, states that Section 19 (1) requires in-depth scrutiny by the designated officer. A higher threshold is re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....can be denied and not furnished a copy of the "reasons to believe". In reality, this would effectively prevent the accused from challenging their arrest, questioning the "reasons to believe". We are concerned with violation of personal liberty, and the exercise of the power to arrest in accordance with law. Scrutiny of the action to arrest, whether in accordance with law, is amenable to judicial review. It follows that the "reasons to believe" should be furnished to the arrestee to enable him to exercise his right to challenge the validity of arrest. 42. We would accept that in a one-off case, it may not be feasible to reveal all material, including names of witnesses and details of documents, when the investigation is in progress. This will not be the position in most cases. DoE may claim redaction and exclusion of specific particulars and details. However, the onus to justify redaction would be on the DoE. The officers of the DoE are the authors of the "reasons to believe" and can use appropriate wordings, with details of the material, as are necessary in a particular case. As there may only be a small number of cases where redaction is justified for good cause, this rea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty undertaking the exercise, in each case. Under Section 19 (1), it is the designated/authorised officer who records in writing, their "reasons to believe" that the arrestee is 'guilty' of an offence under the PML Act. Thus, the arrest is based on the opinion of such officer, which opinion is open to judicial review, however not merits review, in terms of the well-settled principles of law. Contrastingly, under Section 45, it is the Special Court which undertakes the exercise. The Special Court independently examines pleas and contentions of both the accused and the DoE, and arrives at an objective opinion. The Special Court is not bound by the opinion of the designated/authorised officer recorded in the "reasons to believe". A court's opinion is different and cannot be equated to an officer's opinion. While the Special Court's opinion is determinative, and is only subject to appeal before the higher courts, the DoE's opinion is not in the same category as it is open to judicial review. 79. In Vijay Mandanlal Choudhary (supra), a substantive threshold test is not laid down on the 'necessity to arrest'. However, in paragraph 88 of the judgment, the Court has observed that t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....knowingly assists; or (iii) those who are knowingly a party; or (iv) those who are actually involved. Insofar as process is concerned, the Section identifies six different activities, namely (i) concealment; (ii) possession; (iii) acquisition; (iv) use; (v) projecting; or (vi) claiming as untainted property, any one of which is sufficient to constitute the offence. Insofar as product is concerned, Section 3 identifies "proceeds of crime" or the property representing the proceeds of crime as the product of the process or activity." 25. In Radhika Aggarwal Versus Union of India and others, (2025) 150 GSTR 121: 2025 SCC Online SC 449, which is a three Judge Bench judgment of Hon'ble Supreme Court, while concurring with the judgment delivered by Hon'ble the Chief Justice, Hon'ble Justice Bela M. Trivedi, was pleased to hold as under on the jurisdictionary power of judicial review under Articles 32 and 226 of the Constitution of India, when the arrest of a person is challenged: - "....79. While completely agreeing with the well-considered opinion expressed by the Hon'ble Chief Justice, on ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rcise of the power should be confined only to see whether the statutory and constitutional safeguards are properly complied with or not, namely to ascertain whether the officer was an authorized officer under the Act, 2022 SCC OnLine SC 929 whether the reason to believe that the person was guilty of the offence under the Act, was based on the "material" in possession of the authorized officer or not, and whether the arrestee was informed about the grounds of arrest as soon as may be after the arrest was made. Sufficiency or adequacy of material on the basis of which the belief is formed by the officer, or the correctness of the facts on the basis of which such belief is formed to arrest the person, could not be a matter of judicial review. 88. 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 su....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... When an arrested person is produced before a Judicial Magistrate for remand, it is the duty of the Magistrate to ascertain whether compliance with Article 22 (1) and other mandatory safeguards has been made; and f) When a violation of Article 22 (1) is established, it is the duty of the court to forthwith order the release of the accused. That will be a ground to grant bail even if statutory restrictions on the grant of bail exist. The statutory restrictions do not affect the power of the court to grant bail when the violation of Articles 21 and 22 of the Constitution is established." 27. In terms of the law declared by the Hon'ble Supreme Court, the subjective opinion of the Arresting Officer must be founded and based upon fair and objective consideration of the material as is available with him on the date of arrest. The scope of judicial review does not amount to a mini-trial or a merit review. The exercise is confined to ascertain whether the 'reasons to believe' are based upon material which establish that the arrestee is 'guilty' of an offence under the PML Act. The exercise is to ensure that DoE has acted in accordance with the law. The Courts scrutinize the val....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the facts on the basis of which such belief is formed to arrest the person, could not be a matter of judicial review. It hardly needs to be reiterated that the power of judicial review over the subjective satisfaction or opinion of 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 th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is connected with the Proceeds of Crime derived/obtained from the criminal activity related to scheduled offence and in acquisition of the said Proceeds of Crime, this was, indeed, recording down his satisfaction that as per him, the petitioner was guilty of offence punishable under the PML Act. 30. Besides this, it is further apparent from the 'reasons to believe' that said reasons were based on the material with the Arresting Officer, which stood elaborately dealt with in the 'reasons to believe', both relating to the predicate offence as well as the commission of offence under the PML Act. 31. Now, in terms of the law declared by the Hon'ble Supreme Court, in exercise of its power of judicial review, this Court is not going into nor it can go into the correctness of the opinion of the Arresting Officer, because that is beyond the scope of judicial review. Suffice to say that when the mandatory requirements of Section 19 (1) of the Act stand complied with by the Arresting Officer and the compliance is not cosmetic, this Court cannot hold the arrest of the petitioner to be bad in law. The contention of learned Senior Counsel for the petitioner that the arrest of the petition....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eing upheld by the Court, the edifice would also survive. 33. As far as the argument raised on behalf of the petitioner that the Judicial Magistrate was not having any jurisdiction to order the remand of the petitioner is concerned, this Court would like to refer to the provisions of Section 19 (3) of the Prevention of Money-laundering Act, 2002. Sub-section (3) of Section 19 of the Act provides that every person arrested under Sub-section (1) shall within twenty-four hours, be taken to a Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction, provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Special Court or Magistrate's Court. It is not in dispute that in terms of the Notification issued by the Government of India, Sessions Judge, Shimla is designated as Special Judge under the PMLA, 2002 for certain Districts in the State of Himachal Pradesh, including Shimla, Solan and Sirmaur. It is also not in dispute that the Shimla Zonal Office of Directorate of Enforcement recorded an Enforcement Case Information Report (ECIR) bearing No. ECIR/SHSZO/04-2019 ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r Section 19 of the PMLA, 2002. An order of remand has to be challenged only before a higher Forum as provided under the Criminal Procedure Code, 1973, when it depicts a due application of mind both on merit and compliance of Section 167 (2) Cr. P.C. read with Section 19 of the PML Act, 2002. 35. From the response of the respondent-Department and the documents appended with the reply, it is evident that statutory safeguards were properly complied with in the present case. The Arresting Officer was an Authorized Officer under Section 19 (1) of the PML Act and the 'reasons to believe' that the petitioner was 'guilty' of the offence punishable under the PML Act were based on the material in possession of the Authorized Officer. It is also not in dispute that the petitioner was informed about the 'grounds of arrest' soon after his arrest. This Court again reiterates that in this backdrop the sufficiency or adequacy of material, on the basis of which the belief was formed by the Arresting Officer or the correctness of the facts on the basis of which the belief was formed to arrest the petitioner, cannot be gone into by this Court in exercise of its power of judicial review in terms o....