Delhi High Court
Gautam Thapar vs Directorate Of Enforcement on 30 September, 2021
Equivalent citations: AIRONLINE 2021 DEL 1851
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 27th September, 2021
Decided on : 30th September, 2021
+ CRL.M.C. 1883/2021 & CRL.M.A.12911/2021
GAUTAM THAPAR ..... Petitioner
Through : Mr.Vijay Aggarwal, Mr.Sandeep
Kapur, Mr.Vivek Suri, Mr.Mudit
Jain, Mr.Mridul Yadav, Mr.Sahil
Modi, Mr.Abhimanshu Dhyani,
Mr.Sidhant Singh, Mr.Ayush
Jindal, and Mr.Rhythm Aggarwal,
Advocates.
versus
DIRECTORATE OF ENFORCEMENT ..... Respondent
Through : Mr.S.V. Raju, ASG with Mr.Amit
Mahajan, CGSC, Mr.Kritagya
Kumar Kait and Ms.Ananya
Khanna, Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Though Video Conferencing)
1. This petition is filed with following prayers :
"A. Pass necessary orders and directions, thereby quashing and
setting aside the impugned Para No.6 of the order dated
05.08.2021 whereby the Ld.Special Judge dismissed the
Application filed by the Petitioner for declaring his arrest illegal
in terms of A. 22 (2) of Constitution of India r/w s. 57 CrPC and
for necessary orders for remanding the Petitioner to judicial
custody till the disposal of the said application, as the Petitioner
was not produced within 24 hours from the time of his actual
arrest;"
2. The petition challenges an order dated 05.08.2021 wherein an
application moved by the petitioner herein to declare the arrest of the
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LAKSHMI DOBHAL
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petitioner as illegal was dismissed without any reason. It is the
submission of learned counsel for the petitioner the arrest memo of the
petitioner shows he was arrested at 19.55 hours of 03.08.2021 but was
put under restrain at 8.30 AM itself when his premises was raided. The
search and seizure continued from 8.30 AM till 3.30 PM of 03.08.2021.
Thereafter he was taken to office of Directorate of Enforcement for
recording of his statement. It is argued per settled law the time when an
offender is first put to restraint is the time of arrest and if this Court
adheres to this argument then in that event the petitioner was not
produced before the learned Special Judge, PMLA within 24 hours of his
arrest, hence his arrest would be illegal.
3. The learned counsel for the petitioner has referred to Ashfak
Hussain Allah Detha @ Siddiqui and another vs. The Assistant Collector
of Customs (P) Bombay and another (1990) 1 BOM CR 451 wherein the
Court held:
"10. It is thus clear that arrest being a restraint on the personal liberty, it
is complete when such restraint by an authority, commences. Whether a
person is arrested or not does not depend on the legality of the act. It is
enough if an authority clothed with the power to arrest, actually imposes
the restraint by physical act or words. Whether a person is arrested
depends on whether he has been deprived of his personal liberty to go
where he pleases. It stands to reason, therefore, that what label the
Investigating Officer affixes to his act of restraint is irrelevent. For the
same reason, the record of the time of arrest is not an index to the actual
time of arrest, the arrest commences with the restraint placed on the
liberty of the accused and not with the time of "arrest" recorded by the
Arresting Officers."
4. Further in Ramu vs. State of Karnataka ILR 1991 KAR 1861 the
Court held:
"A man can be in custody without his being formally arrested when
restriction is imposed on his movements either by police surveillance or
some other restriction by the police. Arrest commences with the restraint
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placed on the liberty of the accused and not with the time of the formal
arrest recorded by the Arresting Officer. In this case, it is not in dispute
that the petitioner was under police surveillance during his period of stay
for treatment in the hospital from 30-09-1989 to 12-11-1989. There were
restrictions on the movement of the petitioner even in the hospital.
Therefore, there were restrictions placed in the form of surveillance on the
movement of the petitioner even when he was in the hospital. The period of
surveillance over the petitioner in the hospital from 30-9-1989 to 12-11-
1989 will have to be considered as a period of custody in the light of the
various Rulings cited above. Besides, there is a mahazar produced at
Annexure D which is drawn by the police on 12-11-1989 at the time when
this petitioner was taken into the formal custody"
5. And in State of Punjab vs. Davinder Pal Singh Bhullar and Others
(2011) 14 SCC 770 the Court held:
"107. It is a settled legal proposition that if initial action is not in
consonance with law, all subsequent and consequential proceedings
would fall through for the reason that illegality strikes at the root of the
order. In such a fact situation, the legal maxim sublato fundamento cadit
opus meaning thereby that foundation being removed, structure/work falls,
comes into play and applies on all scores in the present case.
6. In Ritesh Tewari and Another vs. State of Uttar Pradesh and
Others (2010) 10 SCC 677 the Court held:
"32. It is settled legal proposition that if an order is bad in its inception, it
does not get sanctified at a later stage. A subsequent action/development
cannot validate an action which was not lawful at its inception, for the
reason that the illegality strikes at the root of the order. It would be
beyond the competence of any authority to validate such an order. It
would be ironical to permit a person to rely upon a law, in violation of
which he has obtained the benefits."
7. He further argued the learned Judge has not given any reasons to
decide his application and being an unreasoned order, it needs to be set
aside. He relies upon Jitender Kumar @ Jitender Singh vs. The State of
Bihar passed in CRL.A.888/2019 dated 10.05.2019 wherein the Supreme
Court held:
9. In the entire impugned order, which consists of 13 paras, we find that
the High Court did not assign any reason as to why the petition is liable to
be dismissed. In other words, neither there is any discussion and nor the
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reasoning on the submissions urged by the learned counsel for the parties.
10. In our view, such approach of the High Court while disposing of the
petition cannot be countenanced. Time and again, this Court has
emphasized the necessity of giving reasons in support of the conclusion
because it is the reason, which indicates the application of mind. It is,
therefore, obligatory for the Court to assign the reasons as to why the
petition is allowed or rejected, as the case may be."
8. Heard.
9. The short question involved is if the time of arrest of petitioner is
8:30 PM of 03.08.2021 or 7:55 PM of 03.08.2021.
10. Admittedly, the search started on 03.08.2021 in the premises of the
petitioner at 8:30 AM and it continued till afternoon uptil 3 o'clock and
thereafter the petitioner was taken to office of respondent for recording of
his statement. It was recorded till 7.55 PM when he was arrested. He was
then produced on 04.08.2021 at about 4 PM before the learned Court.
The question is whether he was produced before Court within 24 hours of
his arrest. For examining the true meaning of arrest one may refer to
Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 (1)
wherein the Hon'ble Supreme Court held :
"46. The word 'arrest' is derived from the French word 'Arreter' meaning
"to stop or stay" and signifies a restraint of the person. Lexicologically,
the meaning of the word 'arrest' is given in various dictionaries depending
upon the circumstances in which the said expression is used. One of us, (S.
Ratnavel Pandian, J. as he then was being the Judge of the High Court of
Madras) in Roshan Beevi v. Joint Secretary, Government of T.N.17 had an
occasion to go into the gamut of the meaning of the word 'arrest' with
reference to various textbooks and dictionaries, the New Encyclopaedia
Britannica, Halsbury's Laws of England, A Dictionary of Law by L.B.
Curzon, Black's Law Dictionary and Words and Phrases. On the basis of
the meaning given in those text book sand lexicons, it has been held that :
"[T]he word 'arrest' when used in its ordinary and natural sense,
means the apprehension or restraint or the deprivation of one's
personal liberty. The question whether the person is under arrest
or not, depends not on the legality of the arrest, but on whether he
has been deprived of his personal liberty to go where he pleases.
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LAKSHMI DOBHAL
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When used in the legal sense in the procedure connected with
criminal offences, an arrest consists in the taking into custody of
another person under authority empowered by law, for the purpose
of holding or detaining him to answer a criminal charge or of
preventing the commission of a criminal offence. The essential
elements to constitute an arrest in the above sense are that there
must be an intent to arrest under the authority, accompanied by a
seizure or detention of the person in the manner known to law,
which is so understood by the person arrested."
48. Thus the Code gives power of arrest not only to a police officer and a
Magistrate but also under certain circumstances or given situations to
private persons. Further, when an accused person appears before a
Magistrate or surrenders voluntarily, the Magistrate is empowered to take
that accused person into custody and deal with him according to law.
Needless to emphasize that the arrest of a person is a condition precedent
for taking him into judicial custody thereof. To put it differently, the taking
of the person into judicial custody is followed after the arrest of the person
concerned by the Magistrate on appearance or surrender. It will be
appropriate, at this stage, to note that in every arrest, there is custody but
not vice versa and that both the words 'custody' and 'arrest' are not
synonymous terms. Though 1 custody' may amount to an arrest in certain
circumstances but not under all circumstances. If these two terms are
interpreted as synonymous, it is nothing but an ultra legalist interpretation
which if under all circumstances accepted and adopted, would lead to a
startling anomaly resulting in serious consequences, vide Roshan Beevi."
11. Further in Roshan Beevi v. Joint Secretary to Government of
Tamil Nadu, 1984 Cri.Lj. 134 Full Bench of Madras High Court held as
under:
"2. One of the main grounds raised in all these writ petitions on the
strength of an observation made by a Division Bench of this Court,
consisting of Balasubrah manyan, J. and M.N. Moorthy, J. in [Kaiser
Otmar v. State of Tamil Nadu, 1981 Mad LW (Cri) 158 : (1981 Cri LJ
(NOC) 208) is that the detenu should be deemed to have been arrested
from the moment they were taken into custody by the Customs officials....
5. In order to answer the reference, the following questions are framed
for consideration: (1) When is a person said to be under arrest? (2) Are
the terms „custody‟ and „arrest‟ synonymous? (3) Are the customs officials
vested with powers under the Customs Act, 1962 to detain any person for
any period and at any place for the purpose of an inquiry, interrogation or
investigation? (4) Will the detention of a person by the customs officers for
the purpose of inquiry, interrogation or investigation, amount to an
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„arrest‟ of the said person? (5) Is detention of a person by the customs
officers for the purpose of inquiry or interrogation or investigation beyond
24 hours without producing him before a Magistrate, violative of Article
22 of the Constitution of India?
61. We have already expressed that the modality of arrest indicated in
Kaiser Otmar's case, 1981 Mad LJ (Cri) 158 : (1981 Cri LJ (NOC) 208) is
not in conformity with Section 46, Cr. P.C., which section by itself is very
clear. We feel that the Bench perhaps would not have laid down this
dictum regarding the mode of arrest had Section 46, Cr. P.C. been
brought to their notice. Further, the Bench has not also adverted to the
leading Full Bench decision of this Court in Collector of Customs v.
Kotumal, AIR 1967 Mad 263 : (1967 Cri LJ 1007) and Harban Singh v.
State, AIR 1970 Bom 79 : (1970 Cri LJ 325) touching on this issue. For
the reasons stated above, we hold that the rule laid down by the learned
Judges constituting the Division Bench, in Kaiser Otmar's case, 1981 Mad
LW (Cri) 158 : (1981 Cri LJ (NOC) 208) with great respect, with regard
to the mode of arrest is not good law.
62. The other question that arises for our consideration in this reference is
whether the Customs Officers can detain any person under the guise of an
enquiry, interrogation or investigation beyond twenty-four hours before
producing him before the Magistrate and whether such a detention would
be violative of Article 22 of the Constitution of India. We have launched
on a detailed discussion while interpreting the term "custody", which
discussion has a bearing on this question. The question of production of a
person before a Magistrate within twenty-four hours as envisaged in
Article 22(2) of the Constitution of India, would arise only if that person is
arrested and detained in custody."
12. Harbansingh Sardar Lenasingh and another vs. The State 1970
Cri.Lj. 325 also notes :
xxx
It may be convenient at this stage to set out the precise position in regard
to what happened in the present case after the accused persons were
apprehended at 2 a.m. somewhere near Bassein. When it was decided that
the panchnama should be made in Bombay, and not at the lonely place at
which the accused persons had been apprehended, the police party, the
panchas and the accused persons came to Bombay and reached
Churchgate at about 9 a.m. as is clear from the evidence of
Superintendent Wagh as well as the panchnama (Ex. 12). The panchnama
(Ex. 12) was then continued in Bombay and was concluded at as late an
hour as 2 p.m. as is shown by what is recorded at the foot of the said
panchnama itself, and it is not surprising that it should have taken so long,
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having regard to the fact that the quantity of gold in respect of which the
panchnama was made was as large a quantity as 6920 Tolas contained in
four gunny bags which, in their turn, contained seven jackets with
innumerable small pockets therein, with different markings on the gold
which had all to be noted. After the panchanama was concluded at 2 p.m.,
the investigation was handed over to Senior Superintendent Robb, and
taking over charge of the investigation and the gold would itself take some
time. Superintendent Robb then recorded the statement of the driver of the
car Bapu. After the recording of the statement of Bapu was concluded, he
started recording the statement of the 2nd accused at about 4 p.m. and
followed this up by the statement of the 1st accused which he finished
recording as late an hour as 6 p.m. It was after he had satisfied himself
from the statements of the accused persons and come to the conclusion
that there was reason to believe that they were guilty of an offence
punishable under Section 135 of the Customs Act that he placed them
under arrest in accordance with the provisions of S. 104(1) of that Act. It
was then too late in the day to put them up before a Magistrate, and the
accused persons were therefore put up before the Chief Presidency
Magistrate the next day as stated in the evidence of Superintendent Robb.
In view of this sequence of events, it could not possibly be said that there
was "unnecessary delay" in putting up the accused persons before a
Magistrate within the terms of Section 104(2) of the Customs Act, 1962.
13. Thus Deepak Mahajan (supra); Roshan Biwi (supra) and
Harbhajan Singh (supra) all in unison clarify the custody and arrest are
not synonymous. In every arrest there is always a custody but in every
custody there may not be arrest. Even otherwise, if one look at the
scheme of PMLA it shows arrest needs to be made only under Section
19(1) of the Act after completion of process under Section 17(1) and
18(1) and the accused is to be produced before the concerned court
within 24 hours of his arrest under Section 19(1).
14. Section 17(1), 18(1), 19(1) and (3) are reproduced as under :
"17. Search and seizure. --
(1) Where 15 [the Director or any other officer not below the rank of
Deputy Director authorised by him for the purposes of this section,] on the
basis of information in his possession, has reason to believe (the reason
for such belief to be recorded in writing) that any person--
(i) has committed any act which constitutes money-laundering, or
(ii) is in possession of any proceeds of crime involved in money-
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laundering, or
(iii) is in possession of any records relating to money-laundering, then,
subject to the rules made in this behalf, he may authorise any officer
subordinate to him to--
xxx
18. Search of persons. --
(1) If an authority, authorised in this behalf by the Central Government by
general or special order, has reason to believe (the reason for such belief
to be recorded in writing) that any person has secreted about his person
or in anything under his possession, ownership or control, any record or
proceeds of crime which may be useful for or relevant to any
proceedings under this Act, he may search that person and seize such
record or property which may be useful for or relevant to any proceedings
under this Act.
19. Power to arrest.--
(1) If the Director, Deputy Director, Assistant Director, or any other
officer authorised in this behalf by the Central Government by general or
special order, has on the basis of material in his possession reason to
believe (the reason for such belief to be recorded in writing) that any
person has been guilty of an offence punishable under this Act, he may
arrest such person and shall, as soon as may be, inform him of the
grounds for such arrest.
(2) xxxxxx..
(3) Every person arrested under sub-section (1) shall within twenty-four
hours, be taken to a 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 Magistrate‟s Court."
15. A bare perusal of Section 17(1) and Section 18(1) would show
under Section 17(1) the officer authorised in its behalf, has only an
information in his possession whereupon he has a reason to believe that
any person has committed any act of money laundering etc. Then such
person can be searched and his properties/documents can be seized; per
Section 18(1) which gives power to search such person if there are
reasons to believe he has secreted about his person or anything under his
possession, ownership or control, any record or proceeds of crime which
may be useful for or relevant to any proceedings under this Act. It is only
thereafter per Section 19(1) of the Act, if the officer has collected
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sufficient material then on the basis of material in his possession with a
reason to believe such person has been guilty of an offence punishable
under this Act, the officer may arrest such person and shall inform him of
grounds for his arrest.
16. Thus the arrest is only under Section 19(1) of the Act after the
formalities under Section 17(1) and Section 18(1) are complete viz. the
search and seizure is made and the officer has in his possession the
material to proceed further. Once the person is arrested under Section
19(1) he needs to be produced before the Special Court within twenty
four hours per Section 19(3) of the Act. Section 19(3) rather clarifies it
is only after the arrest is made under Section 19(1), the person needs to
be produced within twenty four hours before the Court.
17. Admittedly, in this petition there is no challenge to this scheme of
the Act hence the petitioner cannot allege his arrest made by following
the above procedure is illegal. Admittedly per facts, the officers on the
basis of information per Section 17(1) had entered the building at 8.30
AM; conducted search per Section 18(1) till 3 PM and recorded
statements till 7.55 PM and then arrested him per Section 19(1) of the
Act. The petitioner was thus produced within 24 hours before the court
from the time of his arrest under Section 19(1) of the Act, per Section
19(3) of the Act. Hence the petition has no merit. It stands dismissed.
Pending application, if any, also stands disposed of.
YOGESH KHANNA, J.
SEPTEMBER 30, 2021 DU CRL.M.C. 1883/2021 Page 9 of 9 Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:01.10.2021 10:21