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2026 (2) TMI 132
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....TRIBHUVAN DAHIYA, J. These two petitions are being decided by this common judgment as both the petitioners are co-accused in the same transactions involving affairs of a company wherein they are promoters and Directors. For brevity, the facts are being noticed from CRWP No.8667 of 2025, which has been filed under Article 226/227 of the Constitution of India, read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, 'the BNSS'), inter alia for quashing the petitioner's arrest order dated 21.07.2025, Annexure P-26, as well as the arrest memo dated 21.07.2025, Annexure P-28, and the subsequent remand orders dated 21.07.2025, 25.07.2025 and 28.07.2025, Annexures P-33, P-35 and P-38, respectively; prayer has also been made to quash the order dated 31.07.2025, Annexure P-40, passed by the Sessions Judge-cum-Special Judge, Gurugram, under the Prevention of Money Laundering Act, 2002 (for short, 'the PMLA'), whereby the petitioner's application to review the remand orders and direct his immediate release from custody has been dismissed. 2. Facts of the case in brief are, the petitioner is a promoter and Director of M/s Ramprastha Promoters & Developers Pvt. Lt....
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....ary, Mr. Arvind Walia and Mr. Sandeep Yadav and the decision regarding the affairs of these group companies were taken by Mr. Balwant Singh Chaudhary, Mr. Arvind Walia and Mr. Sandeep Yadav. 36. The promoter shareholders of M/s RPDPL are Balwant Singh Chaudhary, Sandeep Yadav and Arvind Walia. 37. M/s Ramprastha Promoters & Developers Pvt. Ltd. (RPDPL) launched a residential project by the name of "Skyz" and "Rise" at Sector 37D, Gurugram, Haryana and a plotted township by the name of "Ramprastha City" consisting of residential plots situated at Sector 37D, 92, 93 and 95, Gurugram. The accused company advertised these projects, and the complainants/homebuyers were induced to invest in these projects. One of the complainants paid almost 70% of the total consideration and the complainant was not given possession of the flat till the registration of FIR. Whenever, the complainant tried to approach the company for the possession of the flat, the complainant was only given evasive replies and thereby cheating the complainant. 38. Some of the complainants were induced to book residential plots in "Ramprastha City", Sector 37D, 92, 93 and 95, Gurugram by the acc....
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....ing under Sections 120-B and 420 of the Indian Penal Code, 1860 (for short, 'the IPC'). The details of the FIRs as mentioned in the reply are as under: Sr.No. FIR No. Police Station Complainant Accused Status of Chargesheet 1 54 Dated 27.03.2024 Vasant Vihar Dr. Anand Bansal Ramprastha Developers Pvt. Ltd. Not available 2 84 Dated 30.06.2025 EOW-Delhi Mahender Kumar Malhotra 1. M/s Ramprastha Promoters Pvt. Ltd. 2. Sandeep Yadav 3. Balwant Singh Chaudhary 4. Arvind Walia 5. Amit Yadav Not available 3 99 Dated 16.04.2025 Sushant Lok Rahul Aggarwal 1. Sandeep Yadav 2. Saurabh Rana 3. Amit Yadav 4. Balwant Singh 5. Arvind Walia Not available 4 489 Dated 28.07.2025 Sushant Lok Deepak Chillar 1. Sandeep Yadav 2. Balwant Chaudhary 3. Amit Yadav 4. Risabh Gulati Not available 5 107 Dated 21.03.2024 Sushant Lok Babu Ram Gahlaut 1. Amit Yadav 2. Sandeep Yadav 3. Balwant Chaudhary 4. M/s Ramprastha Developers Pvt. Ltd. Filed on 12.08.2024 6 307 Dated 12.11.2024 Sushant Lok Dr. Veena Kalra 1. Sandeep Yadav 2. Balwant Chaudhary ....
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....rs of the petitioner and his wife in exercise of powers under Section 17(1-A) PMLA, vide order dated 21.07.2025, Annexure P-25. The petitioner was arrested on the same day, as also the co-accused Sandeep Yadav. 2.3. The arrest was vide impugned arrest order, dated 21.07.2025, and intimation to arrest was given to the petitioner's wife at 12.25 p.m. Arrest memo and personal search memo are also of the same date. The petitioner was handed over 'grounds of arrest' on 21.07.2025, stating that his arrest was by invoking provisions of Section 19 PMLA; it was 'necessary for ascertaining the complete money trail of funds collected from genuine home buyers', and for taking investigation to its logical conclusion. The 'reasons to believe' dated 21.07.2025, Annexure P-31, were also given to the petitioner. He was produced before the Special Court and an application was filed by the ED under Section 187(2) BNSS seeking his custody for fourteen days. The Special Court, however, granted the custody for four days vide impugned order dated 21.07.2025. Extension of his custody was sought by the ED by filing application dated 25.07.2025, and vide the impugned order passed on the same day, he w....
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....s accepted by learned Judicial Magistrate 1st Class (JMIC) on 21.08.2024, Annexure P-4. The third FIR, 431 of 2019, was also lodged on a complaint by a customer who had booked a plot in the Company's project. With him also, a settlement was arrived at on return of the deposited amount on 21.01.2020. Accordingly, cancellation report was filed by the investigating agency in the Court on 04.01.2021, which was accepted vide order dated 12.07.2025. Therefore, it is apparent that on the day of arrest there was no scheduled offence against the petitioners, and there was no basis for their arrest. The 'reasons to believe' as well as the 'grounds of arrest' are completely silent about the fact whether the FIRs were alive and what was the basis of arrest. The authorised officer has neither taken into account the stay order passed by this Court, nor the acceptance of cancellation reports. Relevant facts relating to the scheduled offences were not gathered by him, resulting in the exculpatory material being ignored/not considered which rendered the arrest illegal. In support of the contentions reliance was placed on the law laid down in Vijay Madanlal Choudhary and others v. Union of India and....
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....rpose and cannot be for the purpose of investigation. This shows the petitioners' arrest has been made in haste, on illegal and baseless grounds, in violation of the statutory provisions and the law laid down. Lastly, the contention is, once the petitioners' arrest is held illegal, the subsequent remand orders will also fall to ground being unsustainable in law. 4. Per contra, learned counsel for the ED has submitted that all relevant facts and material were taken into account while arresting the petitioners, and provisions of Section 19 PMLA have been duly complied with. It is further submitted that non-consideration of a particular material cannot vitiate the arrest. Regarding first FIR, 428 of 2019, he contended that stay of an order passed by the Magistrate on an application under Section 156(3) Cr.P.C. would not automatically amount to stay of the FIR. In this regard he has referred to the judgment passed by this Court in CRM-M-51250-2023 titled Sikandar Singh v. Directorate of Enforcement and another, holding that stay of proceedings in FIRs would, at best, mean no further investigation is to be carried out during operation of the interim order, but it cannot be stretched ....
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....ents raised on behalf of the petitioners that 'reasons to believe' and 'grounds of arrest' are identical which vitiates the arrest. The same argument raised before the Supreme Court in Arvind Kejriwal case was rejected in view of the limited power of judicial review with the Court. 4.2. Still further, learned counsel for the ED has contended that the impugned remand order, dated 21.07.2025, gives detailed reasons and has been passed after due application of mind by learned Special Judge. It was after taking into account the relevant facts that the ED's application seeking remand was partially allowed, granting the custody only for four days. And there was a valid justification to arrest the petitioners, that is, to ascertain complete money trail of funds collected from genuine home buyers. Besides, the provisions of Section 19(2) PMLA were also scrupulously followed by the ED and the facts in that regard, as mentioned in the reply, are the following: a. The petitioner herein was arrested on 21.07.2025 at 12.15 P.M. b. A copy of the reasons to believe, grounds of arrest and other documents related to arrest along with the material in possession were immediately ....
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....filed by a home buyer. The order has been stayed by this Court on 19.07.2019 while entertaining a criminal miscellaneous petition against it which is still pending adjudication. The argument on behalf of the petitioners essentially is, when the very basis of registration of the FIR, the Magistrate's order, has been stayed, the consequent FIR could not have been registered, nor could it have been taken into account for arresting them. The argument does not cut much ice for the reason, despite the order of stay the aforesaid FIR stands registered on 19.07.2019, and there is no restrain on further proceedings or investigation pursuant thereto by any Court of law. Nor has the registration of FIR been questioned by the petitioners. In these circumstances, non-consideration of interim order, dated 19.07.2019, by the authorised officer cannot be fatal to the impugned order of arrest passed against the petitioners under the PMLA. 8. So far as the second and third FIRs, 430 of 2019 and 431 of 2019, are concerned, there is no denying the fact that despite settlement(s) dated 21.01.2020, having been arrived at between the parties thereto prior to the date of petitioners' arrest, the FIRs h....
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....stigation for initiating civil action of attachment of property being proceeds of crime by following prescribed procedure in that regard. Resultantly, once the ECIR itself has been termed a document created by the ED for internal administrative purposes, which is not required to be shared with the accused, non-addition of any FIR to such a document prior to arresting the accused, cannot have a bearing on the legality of arrest so as to term it illegal on that account. More so, when the facts concerning the subsequently noticed FIRs of the scheduled offences were investigated and the material collected pursuant thereto was taken into account before passing the arrest order. This is the position in the petitioners' case also, as discussed hereinbefore. Therefore, their arrest cannot be termed illegal merely because the subsequently noticed FIRs have been added to the ECIR after the arrest. 9. The next contention is that the petitioners' arrest is vitiated as there is non-application of mind in recording the 'reasons to believe' as well as the 'grounds of arrest'; the assertion is on the basis that both are identical in material particulars. The contention lacks merit as s....
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....d statutory duty placed on the court to ensure that the fundamental right to life and liberty is not violated. 45 and 46 xxx xxx 47. DoE has drawn our attention to the use of the expression "material in possession" in Section 19(1) of the PML Act instead of "evidence in possession". Though etymologically correct, this argument overlooks the requirement that the designated officer should and must, based on the material, reach and form an opinion that the arrestee is guilty under the PML Act. Guilt can only be established on of the offence admissible evidence to be led before the court, and cannot be based on inadmissible evidence. While there is an element of hypothesis, as oral evidence has not been led and the documents are to be proven, the decision to arrest should be rational, fair and as per law. Power to arrest under Section 19(1) is not for the purpose of investigation. Arrest can and should wait, and the power in terms of Section 19(1) of the PML Act can be exercised only when the material with the designated officer enables them to form an opinion, by recording reasons in writing that the arrestee is guilty. 10. Another submission raised by learned sen....