TaxTMI 
TaxTMI 
2024 (9) TMI 1903
X X X X Extracts X X X X
X X X X Extracts X X X X
....nik, learned APP for the State. We have also heard Mr. Karan Kadam along with Mr. Ishwar Nankani, appearing for the intervenor/complainant. On hearing them, we have issue Rule and by consent of the parties, by making the rule returnable forthwith, we have finally heard the writ petition. 3. The background facts leading to the arrest of the petitioner, as set out in the petition disclose the following events :- (A) The petitioner was flying to India (Ahmedabad, Gujarat) from Singapore on 13/8/2024. Upon landing in Ahmedabad, he was intercepted detained by the Immigration officers around 10.00 p.m, allegedly based on a Look Out Circular ("LOC") issued at insistence of the respondent no.1. (B) Without giving any further information, he was transferred to the custody of Sardar Vallabhbhai Patel International Airport police station. (C) From 10.00 p.m on 13/8/2024 till 1.00 p.m, on 14/8/2024, the petitioner was detained in the police lock-up at Airport police station at Ahmedabad. (D) The officer of respondent no.1 arrived in Ahmedabad ate about 3.00 p.m and the petitioner was brought to Mumbai by Air. (E) The petitioner was shown to be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....so urge before us that the arrest is illegal since the grounds of arrest are not communicated to him, which is a mandate as prescribed in Article 22(1) of the Constitution along with the corresponding provision in form of Section 50 of the Cr. P.C, which make it imperative for every police officer or any person exercising the power of arrest, without warrant to forthwith communicate the full particulars of the offence for which he is arrested or other grounds of arrest. Reliance is placed upon the decision of the Apex Court in Pankaj Bansal vs. Union of India & Ors [2023 SCC Online SC 1244] and Prabir Purkayastha vs. State (NCT of Delhi) [2024 SCC Online SC 934] as well as the decision of this Court in case of Mahesh Pandurang Naik Vs. State of Maharashtra. Relying upon the aforesaid pronouncements, it is the argument of Mr. Ponda that any arrest coming into effect from 3/10/2023 must ensure compliance by indicating the ground(s) of arrest in writing expeditiously. 6. In addition, the learned senior counsel has also pressed before us another important facet in the present case, being that the offence registered against the petitioner is under Section 420 r/w Section 34 IPC....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is not mandatory. 8. In order to assign true meaning to the term 'custody', Mr. Ponda has relied upon the decision in case of Niranjan Singh & Ant. vs Prabhakar Rajaram Kharote & Ors, [(1980) 2 SCC 559] and also upon the decision of the Apex Court in State of Haryana & ors Vs. Dinesh Kumar, [(2008) 3 SCC 222]. Emphasizing upon the test of 'arrest', being whether a person is under control of the Investigating Agency or the Court, or whether he is free man to walk out of the Court, at his free will, by relying upon Niranjan Singh (supra), the persons/authorities competent to arrest, being either the Investigating Agency or other police, or allied authority, or when he is under the control of the Court, he has urged that the term 'arrest' necessarily convey a restrain on a person's movement, and when he is under such a restrain, resulting into deprivation of his personal liberty, it cannot be argued that there is no arrest. 9. We have heard, the Additional Public Prosecutor Mr. J.P. Yagnik, for the State, who had denied infraction of any right of the petitioner and by emphasizing upon the gravity of the offence, he would submit that petitioner is acc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1 authorize the police officer to effect an arrest of a person against whom reasonable complaint has been made or credible information is Tilak received, or a reasonable suspicion exist that he has committed a cognizable offence punishable with imprisonment for a term which may be less than 7 years or which may extent to 7 years, whether with or without fine, if he is satisfied about the existence of the conditions prescribed and he is satisfied that there are reasons to believe that he has committed the offence. If the police officer is satisfied that arrest is necessary for any of the reasons prescribed in Section 41(1)(b), he shall record his reasons in writing, while making such arrest. 12. Section 41-A, which is introduced by Act No. 5 of 2009 with effect from 1/11/2010, has carved out the procedure to be followed, where the arrest of a person is not required, then the police officer shall issue a notice directing the person to appear before him at or such place as he may specify and such person shall be duty bound to comply with the terms of the notice. So long as the person comply and continue to comply with the notice, he shall not be arrested unless the police office....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arrest excluding the time of journey and no such person shall be detained in custody beyond the said period without the authority of the Magistrate. The said provision finds translated in Section 57 of the Code of Criminal Procedure, 1973 and has been held to be mandatory in nature. 15. In Niranjan Singh (supra), the issue arose as to what did the term 'in custody' convey, as in reference to Section 439 of the Code, a High Court or Court of Sessions was empowered to release on bail any person accused of an offence and in custody. When the respondents who were accused of offences but were not in custody, it was urged that the basic condition of being in jail is not fulfilled. The Court postulated a situation, where the accused were not absconding, but appeared and surrendered before the Sessions Judge and whether he can be said to be in custody. Assigning a meaning to the term 'custody' in the context of Section 439, Justice Krishna Iyer, concluded it to be physical control or at least physical presence of the accused in court coupled with submission of the jurisdiction and the orders of the court. While answering a question as to when a person is in c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ged before the Court that 'arrest' is to legally restrain a persons movement, or it is detention of a person in custody by authority of law, while opposing the arguments reliance was placed upon the full bench decision of Madras High Court, in case of Roshan Beevi vs. Joint Secretary to the Government of Tamil Nadu (1984) Criminal Law Journal, 134 (Mad), which had held that 'Custody' and 'Arrest' are not synonymous and it is true that in every arrest there is a custody, but not vice a versa and a custody may amount to 'arrest' in certain cases, but not in all cases. The decision in Niranjan Singh was distinguished by the Full Bench, when it concluded that mere taking of a person in custody would amount to arrest. 17. Expressing that the Apex Court was unable to appreciate the views of the full bench of Madras High Court, and reiterating the decision in Niranjan Singh, paragraph no.7 and 8 of the law report was reproduced with a specific observation that Section 107 and 108 of the Customs Act, do not contemplate immediate arrest of a person, being summoned in connection with an enquiry, but only contemplate surrendering to the custody of the custom....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in Dinesh Kumar's writ petition regarding arrest were incorrect, while the views expressed in the writ petitions filed by Lalit Kumar and Bhupinder correctly interpreted the meaning of the expressions "arrest" and "custody". However, how far the same would apply in the ultimate analysis relating to the filling up of Column 13(A) is another matter altogether." As per Halsbury's Laws of England (4th Edn) Volume 11, para 99 'Arrest' consist of the actual seizure or touching of a persons body with a view to his detention. The mere pronouncing of word "Arrest" is not an arrest, unless the person sought to be arrested, submits to the process and goes with the arresting officer. In all contingencies, arrest amounts to detention of a person in contrast to the state of affairs, when he is a free man. 18. In this background, we had applied our mind to the facts placed before us in the wake of an argument advanced to the effect that from the moment the petitioner was intercepted by the Immigration officers around 10:00 p.m, on 13/08/2024, allegedly based on a Look Out Circular, he was deprived of his liberty and he ceased to be free. Thereafter, he was sen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on department by Immigration Officer Shri Nilesh Salokhe. He contacted Azad Maidan Police Station to confirm whether the said person is a wanted accused in the case registered at Azad Maidan Police Station, Mumbai. Accordingly, the Azad Maidan Police Station verified the facts from Crime Register and FIR through CCTNS record. It was found that the said crime was classified as "A" summary since the suspected accused were not traceable in India. The facts were communicated to the above immigration officer. The Immigration Officer informed that they would hand over the intercepted accused to the local police station, i.e. Airport Police Station, Ahmedabad, and informed that He, Shah, i.e., the present applicant is detained as per the Lookout Notice. Accordingly, the facts were informed to the Sr. PI Azad Maidan Police station and the DCP Zone-1, Mumbai. As per the instructions of the DCP Zone-1, Mumbai, the Sr. PI prepared a team and asked them to verify the said facts and bring him to Mumbai. He further entrusted the necessary steps be initiated to reopen the "A" Summary report granted by the Esplanade Court." 21. In paragraph 10 of the affidavit, a specific statement is made that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s has clearly recorded as under :- Type of LOC (Discreet/Detention/BL/Prevention) :- Detain and Handover to Police and Inform Originator. Originator Reference No. with date :- 3699/DCP/Zone 1/2019 dated 11/12/2019 Action to be taken as per LOC :- Detain and handover intercepted person to local Police and inform Originator. Remarks in LOC Other Ph. No. of Originator 9923139999, 02222623050, 02223010032 Action Taken : Today on 13.08.2024, a Singapore national namely Shah Hem Prabhakar (Male), arrived from Singapore Airlines flight No.SQ-504, approached for arrival immigration clearance and was found to be an LOC subject originated by Deputy Commissioner of Police, Zone I, Mumbai, Walchand, Hirachand Marg, Fort Mumbai-400001. As per remarks in the LOC, "Detain and Handover Intercepted Person to Local Police and Inform Originator'. The subject was detained and handed over to SVPI Airport Police Station. The originator was informed telephonically +91-9870114485 (Sh. Pawale, PI, Azad Maidan PS, Mumbai) and +91-8976953139 (Sh. Parkhe, PSI). 24. From reading of the above, we find substance in the statement of Mr. Ponda that from 13/08/2024, when the petition w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cement of the Apex Court in case of Pankaj Bansal (supra) is distinct from the 'grounds of arrest'. The station diary of Azad Maidan Police Station dated 14/08/2024, at 21:27 hours record that on receipt of the information from Ahmedabad Airport about detention of Hem Shah, in the backdrop of the LOC which was open, he was detained, and his custody was transferred to Airport Police Station. Thereafter, the police team as instructed by ACP Circle-I, reached Ahmedabad at around 15:00 hours and the accused was brought to Azad Maidan Police Station and his custody is handed over to the Police Inspector investigating the offence. The station diary at 23.08 hours which talk of his arrest, record that since the role of the accused in the subject offence is established, after complying the directives of the Apex Court, he has been arrested, and the information about his arrest have been furnished to Rakesh Bhagwandas Dalal, his brother-in-law. The Station diary record that, he was informed of the grounds of arrest in writing before the arrest was actually effected and he was also apprised of the grounds in Hindi language. 26. When repeatedly asked whether the petitioner....