TaxTMI 
TaxTMI 
2026 (8) TMI 1077
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....the written notes as follows. As per the case of the ED, the petitioner was arrested from his house at Nutan Para, Jalpai More, Siliguri (M Corp) at 07.15 pm on 03.06.2025. The nearest Magistrate was the Learned ACJM, Siliguri which is just approximately 3 kms away. Instead, he was produced before the Learned CJM, Jalpaiguri which was approximately 43 kms away at 9.00 pm on the same day. Memo of arrest does not indicate place of arrest [Directorate of Enforcement vs. Subhash Sharma, 2025 INSC 141]. It is pleaded by the learned counsel appearing for the ED that the same was done as no Magistrate was available at Siliguri. The document titled "Grounds of Arrest" is signed by the Mr. Sumit Rai, Assistant Director, KLZO-II, Directorate Enforcement and the petitioner himself - having no proof of intimation of grounds to friends, relatives or such other person as may be nominated by the petitioner. Hence, violation of Section 48 of the BNSS, 2023 read with Article 22 of the Constitution of India as such procedure is not a mere formality [Vihaan Kumar vs State of Haryana, (2025) 5 SCC 799]. In the instant case, such burden is not discharged and even in the Affidavit-in-Opposition, no plea....
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....tioner, as being claimed by the ED. Following, the panchnama, dated 03.06.2025 also becomes nothing but a sham document. All allegedly incriminating material against the petitioner is documentary in nature and as such there is no scope for tampering with evidence. Offence under PMLA, even though serious in nature, yet may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the NDPS, murder, cases of rape, dacoity, kidnapping for ransom, mass violence, etc. The petitioner is in custody for more than 1 year and there is hardly any progress in trial and as such the petitioner's prayer for bail can also be considered on the ground of delay in trial. Bail has been granted in the predicate offence by the Learned Jurisdictional Magistrate. Plea has been taken by the ED that the arrestee was taken to learned CJM, Jalpaiguri because nearest Magistrate as Siliguri was not available. However, Hon'ble Division of the Bombay High Court in Vachhalabai vs State of Maharashtra, [(2020) 1 Bom CR (Cri) 263] upon discussing the Constitutional Assembly Debates at length opined that the provision like that of Section 187(6) ....
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....arrested person straightaway. In the case in hand, the situation is similar, as though ED claims that written grounds of arrest were provided to the family member of the accused, is neither here nor there as no signature is there on the document. The judgement further discusses para no. 43 of Pankaj Bansal (supra). It states the purpose of the mandate. The Hon'ble Apex Court noted that the reason is the constitutional objective underlying such information being given to the arrested person. Conveyance of this information is not only to apprise the arrested person of why he/she is being arrested but also to enable such person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if he/she so chooses. Similar reasoning is given in para no. 42 of the Vihaan Kumar judgement (supra) as well wherein it was stated that the arrested person, because of his detention, may not have immediate and easy access to the legal process for securing his release, which would otherwise be available to the friends, relatives and such nominated persons by way of engaging lawyers, briefing them to secure release of the detained person on bail at th....
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....e of return and not with reference to the initiation of proceedings. The legality of detention on the date of hearing of the habeas corpus petition is relevant and not the date of initial detention. He further argued that the subsequent judgements like that of Vihaan Kumar (supra), Pankaj Bansal (supra), and Mihir Rajesh Shah (supra) are hit by the doctrine of stare decisis since these judgements have been passed without considering the earlier binding precedents of the Hon'ble Supreme Court itself and are thereof per incuriam and have no binding effect. The Court relying upon such submission went on to hold the said judgments are not binding precedents because they are hit by doctrine of stare decisis, as the judgments have not considered earlier law laid down by the Apex Court in the case of earlier judgments in the cases of Kanu Sanyal (supra) and others. The earlier judgments of the Hon'ble Supreme Court have laid emphasis on considering the legality of detention order at the time of return of rule and have held that if the initial detention order was not in accordance with law, but at the time of consideration of the petition a new detention order was passed which was in accor....
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....th the application under Section 187 of BNSS 2023 seeking transit remand was allowed by the then available Court of Chief Judicial Magistrate. Section 19 - "(3) 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." The requirement of Section 19 was duly complied with the arrest memo is duly signed by the uncle of the accused namely Santosh Kumar Thakur. The accused Sonu Thakur is shown absconder in the charge sheet bearing No. 574/23 dated 26.07.2023 thereafter ED was directed to inform the predicate agency which was duly done by the letter dated 06.01.2026. The accused has admitted his abscondence in the bail petition, thereby reinforcing the gravity of his conduct and his criminal intent (mens rea). The proceeding under PMLA is standalone and is independent of predicate offence, various ruling with regard the same are of High Court and Apex Court. That none of the accused in the instant matter who have been arrested have got bail and various bail application filed by them were all rejected upon contest. In the instant case, ....
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....o be actively involved in provisioning of mule accounts to various illegal online betting panels; b. He had a chain of sub-agents who were luring persons to open mule accounts on commission basis; c. He was also found to be running a betting panel; d. He was direct recipient of proceeds of crime given to him for provisioning of mule accounts. The Prosecution complaint details many mule accounts which have given entry to Sonu Thakur for his services; e. Despite being unemployed, his accounts were having a turnover of Rs 13 crores which is the money he has received for his services as a mule account provider; f. He has flight risk as he has a history of being absconder in the Police Chargesheet. ED by its rigorous efforts found him; g. Furthermore, if given bail, he will continue to provide mule accounts to various betting panels. He even has a flight risk; h. Upon his bail, he may try to influence other co-accused and witnesses to change their testimonies. On the contrary, his past conduct reveals a real and imminent risk of absconding, particularly since he has travelled abroad on multiple occasions and has active associates ....
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.... the investigation. Given Sonu Thakur's direct/indirect association with the above mentioned accounts, it is highly likely that he may influence the testimonies of other individuals associated with these accounts. The main contention of the petitioner herein was that the judgement of Vihaan Kumar vs State of Haryana (2025 (5) SCC 799 it mentioned in paragraph 42. Hence, the requirement of communication of ground of arrest in writing is not only to the arrested person, but also to the friends, relatives or such person as may be disclosed or nominated by the arrested person, so as to make the mandate of Article 22(1) of the Constitution meaningful and effective failing which, such arrest may be rendered illegal". In reply to the same the opposite parties herein like to rely on the judgement of Hon'ble Apex Court in Mihir Rajesh Shah vs State of Maharashtra and Others (2026) 1 SCC 500 wherein not only the judgment of Vihaan Kumar has been considered but also other judgments such as Pankaj Bansal vs Union of India 2024 (7) SCC 576, Prabir Purkayastha Vs State 2024 (8) SCC 254 has also been considered and specially mentioned in paragraphs - "14***** This Court ....
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....te the grounds of arrest in writing on or soon after arrest, it be so done orally. The said grounds be communicated in writing within a reasonable time and in any case at least two hours prior to production of the arrestee for remand proceedings before the Magistrate; In case of non-compliance of the above, the arrest and subsequent remand would be rendered illegal and the person will be at liberty to be set free. In addition to it as per the judgement main contention is the arrestee and/or as person should be informed so that appropriate steps can be taken by the accused. Herein its duly signed by him and the Search and seizure list clearly mentions that when the accused was taken into custody he had nothing with him on the other hand or the documents including grounds of arrest, reasons to believe and other documents bears the signature of the accused which clearly shows that the same was handed over to the relative by the accused person. Recently Allahabad, High Court on 27.05.2026 in (Neeraj And Another Versus State of U.P. and Another) distinguishing Vihaan Kumar v. State of Haryana in paragraph 19 onwards and specifically in paragraph 69 has stated that: "******** ....
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....rrest of accused can be made on the grounds of violation of Article 21 and 22(1) of the Constitution of India by resorting to statutory remedy of bail provided under the statute; (v) The remedy of filing habeas corpus petition will also not be available to an accused after the order of committal under Section 209 Cr.P.C./232 B.N.S.S or remand by the trial court under Section 309 Cr.P.C./346 B.N.S.S; (vi) Even after framing of charge as per Section 228 Cr.P.C./240 Cr.P.C by the court, which is also a judicial order amenable to statutory challenge, the remedy of habeas corpus cannot be availed by an accused. It was further contended by the accused person charged arrested around 7:15 PM on 03.06.2025, from Siliguri but he was not produced before the Siliguri bench but before the Jalpaiguri bench which was 45 km away. With regard to the same it is contended that the accused was arrested beyond the normal court hours and was produced before the bench available that time. In addition to it no prejudice was caused to the accused as the accused was presented before the Special Court within 24 hours that is on 04.06.2025. The order taken from Jalpaiguri Bench was a precaut....
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....etitioner was produced before the Special Court within 24 hours of arrest. 9. It is quite understandable that after Court hours one particular Court may not be available for production of an accused. Even if instead of before the Learned ACJM, Siliguri, the petitioner was produced before the Learned CJM, Jalpaiguri, who was evidently available at 9.00 pm., the same would not necessarily be a violation of the statutory requirement. Apparently, the ED did so as a matter of abundant caution. More importantly, it did not cause any prejudice to the accused as he was produced before the Special Court within 24 hours of arrest. 10. The next most vital point raised by the petitioner was that according to them, the records did not show that a copy of the grounds of arrest was served upon a relative of the petitioner, as mandated by the Hon'ble Apex Court in the case of Vihaan Kumar (supra). 11. The contention of the Enforcement Directorate in this regard was that the statutory requirement was to serve the grounds of arrest upon the accused petitioner, which was admittedly done. Reference was made to the relevant documents in this regard. After service of such grounds of arrest, the....
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....ions, the Hon'ble Apex Court has considered very long incarcerations like for more that a year or one and a half year as a reasonable period that would warrant necessary intervention. 15. It is true that in the present case, the petitioner is in custody for about one year and two months. However, there are certain other aggravating factors that are also to be taken into account while considering the question of bail. 16. First, coming to the merits of the case, there are prima facie serious incriminating materials, quite in abundance, available against the present petitioner. After the arrest of the petitioner, his phone was analysed and from his mobile phone, a number of mule accounts (519 in number) were allegedly recovered, which were directly involved with betting activities. These accounts were frozen between 10.06.2025 to 13.06.2025 having balance of approximately Rs. 8.20 crores. 6 mule accounts were in the name of the present petitioner. The freezing orders of the Enforcement Directorate were issued by the Learned Adjudicating Authority vide its order dated 07.11.2025. Therefore, the petitioner was prima facie found to be actively involved in provisioning mule account....