TaxTMI 
TaxTMI 
2024 (10) TMI 1806
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....g No. 307 of 2016 dated 30th November, 2016 was registered with Vaduj Police Station, Satara under sections 420 r/w 34 of the Indian Penal Code (for short "I.P.C") in a predicate offence. A charge-sheet in the predicate offence came to be registered on 14th September, 2017 by Vaduj Police Station, Satara. One Arun Gore filed complaint with Directorate of Enforcement against the Board of Directors of Chhatrapati Shivaji Education Society, Kolhapur on 17th September, 2021. The said complaint was filed against the Board of Directors of the said society for the period from 2011-2016. 4. Accordingly, the aforesaid ECIR came to be registered by the respondent No.1 on 20th October, 2021. One Mahadev Deshmukh came to be arrested on 6th May, 2022 in the said ECIR. Similarly, father of the petitioner namely Appasaheb Deshmukh was also arrested on 6th May, 2022 in the said ECIR. First summons was issued by the respondent Nos. 1 against the petitioner on 22nd June, 2022 which was duly replied. Second summons came to be issued on 28th June, 2022. Ultimately, F.I.R bearing No. 307 of 2016 came to be compounded in a Lok Adalat at Vaduj. 5. Pursuant to an order dated 11th January, 2023 passe....
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....ma facie, can be said to be just, legal and proper in view of the ratio laid down by the Supreme Court in the case of Arvind Kejriwal Vs. Directorate of Enforcement [2024 SCC Online SC 1703], in the sense, whether there was sufficient material with the authorized officer who had recorded his "reasons to believe" in writing and whether there was a "necessity to arrest" the petitioner"? In an earlier Criminal Writ Petition [Stamp] No. 16175 of 2024 [Priyavrat Mandhana Vs. Directorate of Enforcement and others], we have already discussed the scope of the judgment in case of Arvind Kejriwal (supra), V. Senthil Balaji Vs. State and others [(2024) 3 Supreme Court Cases 51.], Pankaj Bansal Vs. Union of India and others [2023 SCC Online SC 1244] and Vijay Madanlal Choudhary and others Vs. Union of India and others [(2022) SCC Online SC 929] wherein the facts are almost identical to that of the case at hand. At the time of hearing the petition, Mr. Venkata Naren Garapaty - Assistant Director and an invstigating officer was also present. Mr. Patil, learned Special Public Prosecutor and the Assistant Director candidly admitted that the petitioner has neither been named in the F.I.R nor charge....
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.... (iii) To trace out the diverted funds which is the proceeds of crime; (iv) To prevent him from influencing the witnesses. (v) To identify other persons involved in these activities. On being asked, neither the Investing Officer nor the Special Public Prosecutor could satisfy us as to how the "reasons to believe" and "the grounds of arrest" could be exactly identical. 16. Be that as it may. Admittedly, the petitioner has neither been named in the F.I.R nor has he been charge-sheeted in the scheduled offence. That is not to say that he cannot be arraigned as an accused in the ECIR. The question is the necessity of arrest. We, in the facts find that the respondent No.1 has utterly failed to adhere to the ratio laid down by the Supreme Court in case of Arvind Kejriwal (supra), in the sense, there is no objective satisfaction but only the subjective satisfaction of the investigating officer of the respondent No.1. Prima facie, it appears that the petitioner has not been arrested in good faith, for, the crime in question which allegedly took place during the period from 2011 to 2016. It appears that the petitioner came to be arrested after eight years as a counte....
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....ll. It is open for us to examine the question whether the "reasons for the belief" have any rational connection or have any bearing on the formation of the belief and are not extraneous or irrelevant to the purpose of the section. It would be apposite to extract paragraphs 72 to 74 in the case of Arvind Kejriwal supra; "72. However, we must observe that in paragraph 32 of V. Senthil Balaji (supra), it is held that an authorised officer is not bound to follow the rigours of Section 41A of the Code as there is already an exhaustive procedure contemplated under the PML Act containing sufficient safeguards in favour of the arrestee. Thereafter, in paragraph 40 of V. Senthil Balaji (supra), it is observed: "40. To effect an arrest, an officer authorised has to assess and evaluate the materials, in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002. Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording the reasons. The said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest.....
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...., may be relevant". 19. Both the documents furnished to the petitioner captioned as "grounds of arrest" and "reasons to believe" are, prima facie, sans application of mind by the respondent No.1. Prima facie, it appears that custody of the petitioner was sought despite the respondent No.1 having already in possession of the relevant documents of which there is no question of getting the same tampered with. Prima facie, we find that the respondent No.1 has misused it's power of arrest which are not in consonance with the observations made by the Supreme Court in the case of Vijay Mandanlal Choudhary (supra) as well as in the case of Arvind Kejriwal (supra). Prima facie, it appears that the powers have been exercised on the basis of whims, caprice or fancy of the investigating officer. 20. Although, Mr. Patil, submitted that the petitioner was arrested as he failed to co-operate in the investigation, it is well settled that non co-operation cannot be a ground to arrest. The Apex Court in case of Arvind Kejriwal (supra) has in para 24 observed as under; "24. In so far the grounds of arrest are concerned, I am of the view that those would not satisfy the test of nece....