Gujarat High Court
Rakesh Manekchand Kothari vs Union Of India on 9 August, 2023
Author: Umesh A. Trivedi
Bench: Umesh A. Trivedi
NEUTRAL CITATION
R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 4247 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE UMESH A. TRIVEDI Sd/-
and
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
======================================
1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
======================================
RAKESH MANEKCHAND KOTHARI
Versus
UNION OF INDIA & 2 other(s)
======================================
Appearance:
MR. VIKRAM CHAUDHARY, SR. ADVOCATE assisted by
MR. CHETAN K PANDYA(1973) for the Applicant(s) No. 1
DS AFF.NOT FILED (R) for the Respondent(s) No. 2
MR. DEVANG VYAS, ASG assisted by
MR. SIDDHARTH H.DAVE (5306) AND
MR. KSHITIJ M. AMIN(7572) for the Respondent(s) No. 1
MS. CHETNA M. SHAH, APP for the Respondent(s) No. 3
======================================
Page 1 of 80
Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION
R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023
undefined
CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
and
HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/08/2023
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)
1. This petition is filed by the petitioner praying for following reliefs:-
" 12. (a) for issuance of a Writ of Habeas Corpus or any other appropriate writ or order in the nature of Habeas Corpus for directing forthwith release of the Petitioner herein with consequential reliefs, from custody pursuant to his illegal arrest without warrant and continued illegal detention in PMLA Case No. 4/2014 filed in ECIR/01/SRT/2014 dated 17.04.2014 pending before the Principal District & Sessions Judge, Ahmedabad (Rural), the designated Special Court under Prevention of Money Laundering Act, 2002 at Ahmedabad;
(b) At the interim / ad-interim stage, pending final disposal of the instant writ petition, the Petitioner may please be released in PMLA Case No. 4/2014 filed in ECIR/01/SRT/2014 dated 17.04.2014 pending before the Principal District & Sessions Judge, Ahmedabad (Rural), the designated Special Court under Prevention of Money Laundering Act, 2002 at Ahmedabad on such terms and conditions Page 2 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined as may deem fit and proper in the interest of justice,
(c) dispense with an affidavit in support of the Petition since the Petitioner is in custody;
(d) and/or pass any other or further orders which Your Lordships may deem fit and proper in the interest of justice."
2. When the matter came up for hearing before this Court on 14.07.2015, a statement was made on behalf of the petitioner that after the amendment of the year 2005 in the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the Act"), the offence for which the petitioner has been involved is non-cognizable and petitioner has been taken into custody in violation of provisions contained in "the Act" as well as mandatory provision of Section 155 read with Section 4(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code"), an investigation has started without the orders of the Magistrate and petitioner was arrested without warrants. Considering the said statement, as coming out from the order, notice of Rule came to be issued. 2.1 Thereafter, vide order dated 03.08.2015, after hearing the appearing parties, and considering the submissions made, this Court issued Rule in the petition and petitioner was Page 3 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined ordered to be released till final decision of this petition subject to his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the special Court and on observing other general conditions as well as condition that he will not leave country without prior permission of the trial Court.
2.2 Prior to summer break, this matter was on board for hearing dated 24.04.2023 and it came to be adjourned on 25.04.2023 in view of the leave-note filed by the learned advocate for the petitioner.
2.3 On 25.04.2023, a request was made on behalf of learned advocate for the petitioner that the learned Counsel appearing in this matter all throughout was busy in other Court and he would be available on Friday i.e. on 28.04.2023 and if the matter spills over, it can be heard on Saturday i.e. 29.04.2023, being a Court working Saturday as per the calendar. Therefore, matter was adjourned to 28.04.2023. However, on that day, time was sought for to place on record required documents for the purpose of hearing of this petition, which would be submitted with the Registry on or before 16.06.2023 i.e. after summer break.
Page 4 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 2.4 On 20.06.2023, again time was sought for by the learned advocate for the petitioner, which was granted and matter was adjourned to 27.06.2023. Since then, hearing started from 27.06.2023, though intermittently accommodating learned advocates for the appearing parties and on 04.07.2023, learned advocate for the petitioner submitted that the petitioner would like to give written submissions within two days hereof i.e. within two days from 04.07.2023 and the hearing be treated as concluded. Thereafter, matter was adjourned to 06.07.2023. Since matter was adjourned to 06.07.2023, written submissions were supplied. In the changed scenario, matter was adjourned to 18.07.2023. As recorded in an order dated 18.07.2023, in the meanwhile, petitioner filed petition before the Supreme Court under Article 139A of the Constitution of India praying transfer of this petition to the Supreme Court, came to be withdrawn. Therefore, it was recorded that the hearing was concluded and the matter is kept for judgment.
2.5 As such, this matter has a very chequered history, as coming out from the record of this case. The very petitioner filed Special Criminal Application (S.Cr.A.) No. 4496 of 2014, Page 5 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined praying following reliefs:-
"19. a) To strike down Section 45 of the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as 'PMLA') [as inserted / substituted by Amendment Act 2005 (20 of 2005), dt. 21-5-2005], as the said provision does not bear any reasonable and rational nexus with variety of Scheduled offences mentioned in the Schedule under the Act which may even be non-cognizable, bailable and on much lighter pedestal, for being unreasonable and ultra vires, and consequently unconstitutional, illegal, arbitrary, discriminatory, and thus being violative of Articles 14, 19 and 21 of the Constitution of India, and this Hon'ble Court may read down, lay down, expound, interpret and deliberate upon the scope and perspective of Section 45 of PMLA so as to harmonize the same in juxtaposition with various scheduled offences (under amended Part A of the Schedule),
b) To read down, expound, deliberate and interpret the scope and perspective of Section 19 of PMLA in light of section 49(3) read with Rules notified by GSR 446(E) dated 1.7.2005, in consonance and harmony with settled constitutional mandate of Articles 14, 21 and 22 of Constitution of India as also in the context of various provisions under the Code of Criminal Procedure, 1973, as amended from to time and the Guidelines laid down by the Hon'ble Page 6 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Apex Court in D.K. Basu vs State of West Bengal, 1997 (1) SCC 416,
c) For issuance of an appropriate writ of quo warranto, calling upon Respondent No.3, who being an Assistant Director, Enforcement Directorate, appointed under Foreign Exchange Management Act, 1999, can under section 54 of PMLA only assist any officer investigating under PMLA, to show cause as to how and under what authority has he exercised the power of arrest under Section 19 of PMLA, while effecting arrest of the Petitioner on 01.09.2014 in ECIR/01/SRT/2014, without producing till date, despite specific objection by the Petitioner-
i) any authorization conferring upon him by way of any notification or order issued by the Central Government in terms of Section 19 and Section 49 of PMLA, 2002, read with Rules notified by GSR 446(E), dt.1-7-2005, authorizing him to be an "Arresting Officer"
and to exercise power to arrest under section 19,
ii) any notification issued by Central Government for his appointment as Assistant Director under section 49 of PMLA,
iii) any records to show compliance of Rules notified by GSR 446(E) dated 1.7.2005,
iv) and any Criminal Proceedings against the Petitioner in the alleged Scheduled offence Page 7 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined showing the Petitioner as an accused person; and
d) For issuance of an appropriate writ of habeas corpus, or order or direction under Article 226 of the Constitution of India, directing forthwith release of the Petitioner from custody, by setting aside the impugned Arrest Order dated 1.9.2014 and the consequent remand proceedings, as the arrest of the Petitioner is manifestly illegal, without jurisdiction, null and void ab initio, for clear violation of-
i) The directives of the Hon'ble Apex Court in D.K. Basu vs State of West Bengal, 1997 (1) SCC 416 [more particularly those prescribed in sub-para (2), (9) and (10) of Para 35 thereof],
ii) The provisions of PMLA including amongst others of Section 19 (1) of PMLA, which mandatorily prescribe the arrest to be made on the basis of such "material in possession", on the basis of which there exists "reason to believe" that person is "guilty" of an offence under the PMLA; which shall be "recorded in writing"; and pursuant to arrest to inform him of the 'Grounds' for such arrest,
iii) Rules notified by Central Government vide GSR 446(E), dt.1-7-2005,
iv) Notification GSR 441(E) dated 1.7.2005 Page 8 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined issued by the Central Government appointing Director to exercise the "exclusive" power conferred under section 19 of PMLA,
v) Article 14, 21 and 22 of the Constitution of India
e) At the interim / ad-interim stage-
i) The proceedings under PMLA against the
Petitioner may please be stayed,
ii) The Petitioner may please be released on
regular bail in the above case in ECIR/01/SRT/ 2014,
f) Dispense with filing of affidavit in support to this Petition as the Petitioner is in judicial custody;
g) For such other or further order/s in the peculiar facts of the case."
2.6 The said petition came to be presented on 15.10.2014 & it came to be heard and finally disposed of by this Court vide order dated 16.01.2015 by a common judgment and order passed in S.Cr.A. No. 4496 of 2014 and S.Cr.A. No. 4672 of 2014, rejecting the challenge of the petitioner for the prayers, as mentioned hereinabove.
2.7 Criminal Misc. Application (For Review) No. 3715 of 2015 in S.Cr.A. No. 4496 of 2014 came to be filed by the petitioner Page 9 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined praying for review of the decision rendered by the Court, which was not pressed as the petitioner was contemplating to challenge the common CAV Judgment dated 16.01.2015 rendered in this petition before the Supreme Court by filing Special Leave Petition (SLP), however, on submission being made, it was made clear that common CAV Judgment dated 16.01.2015 in S.Cr.A. No. 4496 of 2014 shall have no bearing in the pending bail application or any other applications pending before the Court of law or any other forum/authority. 2.8 To make the record complete, it would be profitable to state that the petitioner preferred S.L.P. (Criminal), which was filed in delay and perhaps there was Criminal Misc. Petition No. 7277 of 2015 praying for condonation of delay in the said S.L.P.. At the same time, petitioner has also preferred independent Writ Petition (Criminal) No. 61 of 2015 and both were heard together and vide order dated 07.07.2015 passed by the Supreme Court, petitioner withdrew not only the S.L.P. preferred against an order passed by this Court in S.Cr.A. No. 4496 of 2014 but also the independent Writ Petition filed, as aforesaid, also came to be withdrawn. However, it was clarified that withdrawal of the present Writ Petition i.e. Writ Petition Page 10 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined (Criminal) No. 61 of 2015, will not come in the way of any other Writ Petition that is already pending or that may be filed by the petitioner.
2.9 Thus, challenge to the order passed by this Court in a writ of habeas corpus filed on earlier occasion vide S.Cr.A. No. 4496 of 2014 as also independent Writ Petition (Criminal) No. 61 of 2015 challenging constitutional validity of provisions of "the Act" came to be withdrawn, whereby judgment and order passed by this Court in earlier Writ Petition i.e. Special Criminal Application No. 4496 of 2014, came to be confirmed. 2.10 It would be pertinent to note that, vide arrest order dated 01.09.2014, Assistant Director (Camp Ahmedabad) of Enforcement Directorate, Department of Revenue, effected arrest of the petitioner having reason to believe that he has been guilty of an offence punishable under Section 4 read with Section 3 of "the Act", while exercising powers conferred upon him under sub-section (1) of Section 19 of "the Act", petitioner came to be arrested by them. Vide Criminal Misc. Application No. 1293 of 2014 filed before the designated Judge under the Prevention of Money Laundering Act, 2002, and Principal District Judge, Ahmedabad (Rural), the petitioner opposed any Page 11 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined further remand in connection with ECIR/01/SRT/2014 and sought for bail under Section 439 of "the Code", which came to be rejected by an order dated 08.10.2014. First supplementary complaint to the Complaint No. 3 of 2014 in the P.M.L.A. Case came to be filed against present petitioner as Accused No. 1 and 9 other co-accused, as coming out from the petition, on 29.10.2014. The designated Judge under P.M.L.A. Act, Ahmedabad (Rural) at Mirzapur, Gujarat, on the very same day, took cognizance of the same and complaint was ordered to be registered and numbered.
2.11 Since the application for bail and opposition of further remand, if any asked for, filed by the petitioner vide Cr.M.A. No. 1293 of 2014 before designated Court came to be rejected, petitioner preferred Cr.M.A. (For Regular Bail) No. 3637 of 2015, which came to be rejected by this Court vide order dated 31.03.2015.
2.12 The petitioner thereafter preferred S.L.P. (Criminal) No. 3978-3979 of 2015 challenging the order passed by this Court refusing bail in Cr.M.A. No. 3637 of 2015, which came to be dismissed by the Supreme Court vide order dated 12.05.2015. However, liberty was granted to the petitioner, if he so desires, Page 12 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined to make an appropriate application/petition, as envisaged under the provisions of "the Code", after 6 months thereof. 2.13 It appears that, instead of applying for bail after 6 months from the date of the order passed by the Supreme Court, he appears to have filed present petition on 13.07.2015, praying for issuance of writ of habeas corpus directing the forthwith release of the petitioner, with consequential release from custody, pursuant to his illegal arrest without warrant and continued illegal detention in P.M.L.A. Case No. 4 of 2014.
3. We have heard Mr. Vikram Chaudhary, Senior Advocate, learned Counsel, assisted by Mr. Chetan K. Pandya, learned advocate for the petitioner, Mr. Devang Vyas, Senior Advocate, learned Additional Solicitor General of India with Mr. Siddharth Dave, learned advocate, with Mr. Kshitij Amin, learned advocate for respondent No. 1 as also Ms. Chetna M. Shah, learned APP for respondent No.3 - State.
3.1 Mr. Vikram Chaudhary, Senior, learned Counsel, submitted that maintainability of the present writ petition and the non-applicability of the principles of res-judicata or constructive res-judicata as well as grant of bail to the petitioner and the only eventuality to cancel or withdraw the Page 13 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined same having been limited to be agitated in the event of misuse of liberty by the petitioner, stands conclusively concluded by this Court vide order dated 03.08.2015, and therefore, it is not open to challenge.
3.2 It is further submitted that the order passed by this Court dated 03.08.2015 was challenged by one Ramnath Sharma permitting him to file Special Leave to Appeal, which came to be dismissed by the Supreme Court vide order dated 21.08.2015 in S.L.A. (Cri.) CRLMP No. 13558 of 2015, and liberty was granted to him to make appropriate application before the Court below for cancellation of bail, if the respondent misuses the bail granted to him. Furthermore, as submitted by the learned Counsel, Union Of India had also challenged order dated 03.08.2015 by way of S.L.P. (Criminal) No. 9727 of 2015, which came to be dismissed vide order dated 23.11.2015. Thus, according to the submission of learned Counsel, detailed order dated 03.08.2015 considering the challenge to the maintainability of the present petition on the ground of res-judicata or constructive res-judicata is put to rest by the Supreme Court as also an order of bail, giving right to the petitioner therein to move the competent Court for Page 14 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined cancellation of bail, if respondent - accused therein misuses the bail granted to him. Therefore, it is the submission of learned Counsel for the petitioner that there remains nothing to be further done in this case except to continue the bail granted to the petitioner.
3.3 It is further submitted that petitioner is being illegally arrested without warrant and continued illegal detention in P.M.L.A. Case No. 4 of 2014 filed in ECIR/01/SRT/2014 dated 17.04.2014 pending before the Special Court for P.M.L.A. at Ahmedabad, wherein on being summoned, he had appeared on 01.09.2014 before Enforcement Directorate and was illegally arrested without warrant in a non-cognizable offence under "the Act".
3.4 It is further submitted that on finding prima-facie merit in the present petition, while issuing Rule, the petitioner was enlarged from physical custody by granting bail while keeping the petition pending and granting liberty to the parties to move for early hearing after decision in reference made in the case of Tofan Singh v. State of Tamil Nadu, reported in (2013) 16 SCC 31. Therefore, it is submitted that the petitioner remains in constructive custody by virtue of his bail bonds. Page 15 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 3.5 It is further submitted that the preliminary issues that arises for consideration is, "whether after lapse of 8 ½ years from grant of bail in this petition, by continuing the bail, the issues raised can be left open to be dealt with later before trial Court, particularly in light of the peculiar fact that scope of Sections 3 & 45 of "the Act", the issues of necessity to comply with the provisions of Chapter XII of "the Code" and the issue of admissibility of statements under Section 50 of "the Act" are presently pending in review petitions and various writ petitions before the Honourable Supreme Court ?"
3.6 It is further submitted that it is undisputed position that, now the scope of Sections 3 & 45 of "the Act", the issues of necessity to comply with provisions of Chapter XII of "the Code" and the issue of admissibility of statements under Section 50 of "the Act" are pending before the Supreme Court. Respondents have therefore, fairly accepted that the bail of the petitioner can be continued and have not objected to the proposal that the issues raised in this habeas corpus petition can be left open to be dealt with after the judgment of the larger Bench of the Supreme Court in the said batch of matters presently being heard.
Page 16 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 3.7 It is further submitted that the issues raised are to be decided in consonance with the paradigm shift from the era of "procedure established by law" to this era of "substantive due process", more so as the earlier judgments did not have benefit of expansion of the scope of Articles 14, 19, 20 & 21 recognised by the Constitution Bench judgments in Maneka Gandhi v. Union Of India, reported in (1978) 1 SCC 248, Ramanlal Bhogilal Shah, reported in (1973) 1 SCC 696, Mohd. Arif v. Supreme Court of India, reported in (2014) 9 SCC 737 and Justice K.T. Puttaswamy vs Union Of India, reported in (2017) 10 SCC. Further, now there are judgments of, a Constitution Bench in Lalita Kumari v. State of U.P., reported in 2014 (2) SCC 1, a three-Judge Bench of Hon'ble Supreme Court in Om Prakash v. Union of India, reported in (2011) 14 SCC 1 and also a judgment in Ashok Munilal Jain vs. Assistant Director, Directorate of Enforcement, reported in (2018) 16 SCC 158. 3.8 It is further submitted that following question of law are to be adjudicated:-
"A. Whether the words 'police officer', 'officer in charge of police station' etc. used in CrPC would be suitably read as Page 17 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 'investigating officer' for investigations under Special Acts such as PMLA?
B. Whether alleged offence under PMLA for which the petitioner was arrested on 01.09.2014, was 'cognizable' or 'non-cognizable'?
C. Consequently, if the offence was 'non-cognizable', whether petitioner's arrest on 01.09.2014 without a warrant, and continuation of custody thereafter was illegal on the vice of Articles 14 and 21 of the Constitution of India, in view of non-compliance with Sections 155, 172 & 4(2) of CrPC read with Section 65 of PMLA? And, if the offence was 'cognizable', whether petitioner's arrest and continuation of custody thereafter, was illegal on the vice of Articles 14 and 21 of the Constitution of India, in view of non- compliance with Sections 154, 157, 172 & 4(2) of CrPC read with Section 65 of PMLA?
D. Whether the words "police officer" in Section 25 of Evidence Act would be suitably read as an 'investigating officer' investigating offence under Special Acts such as PMLA, and the word "accused" used in Section 25 of Evidence Act and Article 20(3) of Constitution would include a person arrested on accusation of offence of Page 18 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined PMLA? Consequently, whether statements of an accused recorded under Section 50 of PMLA would be subject to Section 25 of Evidence Act and Article 20(3) of the Constitution of India?
E. Whether arrest under Section 19 of PMLA and continued custody is even otherwise illegal for having no material in possession to form the reasonable belief qua the petitioner having knowingly committed an offence under Section 3 of PMLA?"
3.9 It is further submitted that prima-facie findings recorded by Delhi High Court in the case of Rajbhushan Omprakash Dixit v. Union Of India & Anr. dated 19.02.2018 in W.P. (CRL) 363/2018 & in CrL.M.A. 215/2018, more particularly paras 24 to 41 and 54 to 55 be treated as submission of the petitioner and as part and parcel of the instant submissions. 3.10 It is further submitted that the remand to custody was wholly mechanical and remand orders were not such that would cure constitutional infirmity. For making the said submission, a decision in the matter of Madhu Limaye And Ors., reported in (1969) 1 SCC 292, Gautam Navlakha v. National Investigation Agency, reported in 2021 SSC Page 19 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined OnLine SC 382, A.R. Antulay v. Ramdas Sriniwas Nayak And Another, reported in 1984 (2) SCC 500, were relied on to submit that Code of Criminal Procedure is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of various designations. It is submitted that the same ratio was laid in Vishwa Mitter v. O. P. Poddar And Others, reported in (1983) 4 SCC 190. In the context of Trade & Merchandise Marks Act in JIK Industries Ltd. v. A.V. Jumani, reported in (2012) 3 SCC 255, paras 69 to 73, in the context of Negotiable Instruments Act, in Mirza Iqbal Hussan v. State of U.P., reported in (1982) 3 SCC 516, para 2 therein, in the context of Prevention of Corruption Act and in Union of India v. Thamisharasi, reported in (1995) 4 SCC 190, in paras 5, 6 & 14, in context of NDPS Act.
3.11 It is vehemently submitted that arrest of the petitioner without warrant in non-cognizable offence under "the Act" was in contravention of Section 155 of "the Code" as also in contravention of decision of the Supreme Court in the case of Om Prakash (Supra) & State of Haryana v. Bhajan Lal, reported in 1992 Suppl. (1) SCC 335 and in violation of Articles 14 & 21 of the Constitution of India. Page 20 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 3.12 In support of his aforesaid submission, he relied on a decision in the case of Tilak Nagar Industries Ltd.& Ors v. State Of A.P. & Anr, reported in (2011) 15 SCC 571, more particularly para 11 thereof. The decision in the case of Keshav Lal Thakur v. State of Bihar, reported in (1996) 11 SCC 557 was again relied on in support of submission that non-compliance of Section 155 of "the Code" in a non- cognizable offence, entire criminal proceedings can be quashed.
Relying on the aforesaid decisions, the petitioner submitted that since the procedure prescribed under Section 155 of "the Code" is not followed in investigation, in a non- cognizable offence under "the Act", his arrest and continued custody without following Section 155 of "the Code" are illegal and vitiated in the eyes of the law, warranting forthwith release of the petitioner from constructive custody, with consequential reliefs.
3.13 Relying on a decision in the case of Om Prakash (Supra), it is submitted that Central Excise & Custom Officers are at par with a Police Office for complying with the requirements of Section 155 of "the Code", holding that in the Page 21 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined case of 1994 Act, in view of Section 9A, all offences come under that Act, have been made non-cognizable and having regard to the provisions of Section 155, neither could any investigation be commenced in such cases nor could a person be arrested in respect of such offence without a warrant for such arrest.
3.14 It is further submitted that Review Petition No. 97-98 of 2013 filed by the Union Of India specifically challenging the dicta of Om Prakash (Supra) dismissed by three-Judge Bench of Supreme Court vide order dated 13.08.2013, wherein review petition records the question raised in the writ petition as including "(ii) Whether an Excise Officer can arrest a person suspected of commission of evading Excise Duty without a warrant from a Magistrate." The order passed by another three-Judge Bench and two-Judge Bench of the Supreme Court in different proceedings, granting liberty to respective petitioners to raise issue of non-compliance of Section 155 of "the Code" before any other appropriate Court while observing that, in Om Prakash (Supra), provisions of Section 155 of "the Code" were considered in detail, it is submitted that the decision in the case of Om Prakash (Supra) has to be followed in the present case also.
Page 22 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 3.15 In the non-cognizable regime, the emphasis in the Constitution Benches in Romesh Chandra Mehta v. State Of West Bengal, reported in 1970 SC 940 & Illias v. Collector Of Customs, Madras reported in AIR 1970 SC 1065, was on lack of power to submit a final report under Section 173 of "the Code" for holding that, Customs Officer was not a Police Officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person, who is arrested or against whom an inquiry is made, are not covered by Section 25 of the Evidence Act. The observations of the Constitution Benches were not in context of application of the provisions of "the Code". 3.16 Relying on a decision in the case of S.I.O. v. M.K.S. Abu Bucker, reported in 1990 Cri.L.J. 704 of Madras High Court, it is submitted that reading of Section 4(2) of "the Code"
renders the provisions of "the Code" applicable in the field not covered by the provisions of the Customs Act. Therefore, it is submitted that in relation to the matters of investigation, inquiry, trial or dealing otherwise, not covered by the provisions of the Customs Act, the parallel provisions of "the Code" necessarily will have to be applied. It is submitted that, Page 23 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined such operation of Section 4 of "the Code" cannot be just rejected merely because "the Code" uses expressions which are compatible with offences under the Indian Penal Code and investigation being conducted by a Police Officer. 3.17 It is further submitted that while holding that the Customs Officers are not a Police Officer for the purpose of Section 25 of the Indian Evidence Act and a person making a statement to a Customs Officer under Sections 107 and 108 of the Customs Act can be said to be a person "accused of any offence" within the meaning of Article 20(3) of the Constitution of India and the Customs Officer acting under the Customs Act was not a Police Officer for the purpose of Section 25 of the Indian Evidence Act as held in Illias v. Collector (Supra) and Romesh Chandra Mehta (Supra).
In both these cases, according to the submission of learned Counsel for the petitioner, it is nowhere mentioned that the provisions of Chapter XII of "the Code" and provisions of Section 167(2) of "the Code" would not be available when the person is detained under the Customs Act and produced before the Magistrate by the Officer appointed under the said Act.
Page 24 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 3.18 Relying on a decision in the case of M.K. Ayoob v. Superintendent, CIU, 1984 CRI. L.J. 949 (Kerala HC), it is submitted that under sub-section (2) of Section 4 of "the Code", all offences under any other law (i.e. law other than the Penal Code) shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions (i.e. the provisions of "the Code"), but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences, it would mean that in the absence of any provisions in "the Act", touching any such matter as mentioned in sub-section (2) of Section 4 of "the Code", the provisions of "the Code" would apply.
3.19 It is further submitted that the applicability of sub- section (2) of Section 4 of "the Code", in the context of non- cognizable offences of FERA and Customs Act, 1962 was again in issue and decided in affirmative by Supreme Court in the case of Directorate of Enforcement v. Deepak Mahajan, reported in (1994) 3 SCC 440, after considering and applying some of the precedents, it is submitted that in paras 91 and 96 thereof, various earlier judgments of Constitution Benches, including State of Bombay v. Kathi Kalu Oghad, reported Page 25 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined in 1962 (3) SCR 10, Romesh Chandra Mehta (Supra), Veera Ibrahim v. State of Maharashtra, reported in 1976 (2) SCC 302, Illias v. Collector (Supra) and Ramanlal Bhogilal Shah (Supra), of all which were distinguished as none of them were related to interpretation of these terms for the purpose of provisions of Section 167 of Chapter XII of "the Code". In para 106 thereof, according to the submission of learned Counsel for the petitioner, Supreme Court approved the view taken by Madras High Court in S.I.O. v. M.K.S. Abu Bucker (Supra). In short, the submission is that for the purpose of investigation and trial, provisions of "the Code"
along with Chapter XII cannot be ignored which requires permission of the Court concerned to effect the arrest of the accused in a non-cognizable offence, to take up the investigation into the said non-cognizable offence. 3.20 It is further submitted that the contention of the respondent that Chapter XII of "the Code" is excluded, runs contrary to the decision of the Supreme Court in the case of Deepak Mahajan (Supra), as investigation was for seeking custody under Section 167(2) of "the Code" as also in Chapter XII of "the Code".
Page 26 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined It is submitted that para 91 of decision of Supreme Court in the case of Deepak Mahajan (Supra) clarifies that the judgments of the Constitution Benches in regard to admissibility of statements in light of Article 20(3) of the Constitution and Section 25 of the Evidence Act, were not applicable for deciding the issue of applicability of the provisions of "the Code" in light of sub-section (2) of Section 4 of "the Code".
3.21 It is further submitted that even after the alleged offence is construed as 'cognizable', the right under Article 21 of the Constitution of India is protected, if the FIR is registered first and then the investigation is conducted in accordance with the provisions of law as held by the Constitution Bench of the Supreme Court in the case of Lalita Kumari (Supra). Therefore, recording of Information Report by the E.D. officer in his office itself and sending a copy thereof forthwith to the jurisdictional Magistrate is mandatory on receipt of an information of a commission of cognizable offence under "the Act", by application of Sections 154 and 157 of "the Code". 3.22 A decision in the case of Gorav Kathuria v. Union Of India & Ors., reported in 2016 SCC OnLine Punjab & Page 27 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Haryana 3428 is relied on by the learned Counsel for the petitioner to contend that as held in the said decision, by application of sub-section (2) of Section 4 of "the Code" and in view of the binding precedents referred to therein, the words 'Police Officer' appearing in definitions would be read as 'officer authorized under the Customs Act, 1962'. Thus, in a 'cognizable offence' under the Customs Act, 1962, the Custom Officer would have power to arrest under Section 104(1) without a warrant. He would comply with provisions of Sections 154 to 157 by recording the information and sending forthwith a copy of the report under Section 157 to the jurisdictional Magistrate. But in a 'non-cognizable' offence under "the Act", he would have to obtain from jurisdiction Magistrate, permission to investigate and a warrant of arrest under Section 104(1) of "the Act" as held by the Supreme Court in the case of Om Prakash (Supra).
3.23 It is further submitted that the aforesaid judgment of Gorav Kathuria (Supra) was challenged before the Supreme Court by Criminal Appeal No. 737 of 2016 and Supreme Court dismissed the said appeal while observing that the judgment impugned was correct, vide order dated 12.08.2016. Page 28 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 3.24 Relying on a decision of the Supreme Court on the Doctrine of Merger, it is submitted that the judgment and order passed by the Punjab & Haryana High Court in the case of Gorav Kathuria (Supra) is merged with that of the Supreme Court. It is also submitted that the Union Of India did not even challenge the said judgment of Punjab & Haryana High Court in Gorav Kathuria (Supra).
3.25 It is also contended that an arrested person shall be taken to a Magistrate, obviously for seeking his remand under Section 167 of "the Code". The said Section 167 of "the Code"
also uses the words 'Officer in charge of police station' and 'Police custody'. As held by different Courts, including Supreme Court, as referred to hereinabove, these terms in Section 167 of "the Code" would be suitably read to refer Custom Officers. Thus, it is submitted that, when the FERA/Customs Act offences were only "non-cognizable", by relying on sub-section (2) of Section 4 of "the Code", it was held that Section 167 of "the Code" would be applicable, notwithstanding use of words 'Officer in charge of police station' and 'Police custody', after considering the earlier judgments which held that Customs officers are not Police officers for the purpose of Evidence Act. Page 29 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined A decision in the case of Ashok Munilal Jain (Supra), is relied on to contend that provisions of sub-section (2) of Section 4 of "the Code" and the procedure contained therein applies in respect of special statutes as well unless the applicability of the provisions is expressly barred. 3.26 It is further submitted that Sections 44 to 46 of "the Act" specifically incorporate the provisions of "the Code" to the trials under "the Act". Thus, it is submitted, not only there is no provision in "the Act" excluding the applicability of "the Code", on the contrary, provisions of "the Code" are incorporated by specific inclusion. Even Section 65 of "the Act" itself settles the controversy beyond any doubt in this behalf. 3.27 It is submitted that in "the Act", there is no provision overriding Section 155 of "the Code", as in the case of Section 6 of the Railways Property (Unlawful Possession) Act, 1966 (hereinafter referred to as "RPUP Act") for investigating and arresting any accused of non-cognizable offence without an order and without any warrant from Magistrate. The "RPUP Act" was enacted investing the powers of investigation and prosecution of offences relating to Railway property in the Railway Protection Force in the same manner as in the Excise Page 30 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined and Customs. Although Section 5 made the offence under the said Act a 'non-cognizable' offence, yet while enacting the said Act, there was a specific departure in Section 6 to exclude application of Sections 155(2) and 155(3) of "the Code". Therefore, it is submitted that the specific provisions of Section 6 of the "RPUP Act" are inconsistent with Section 155 of general provisions of "the Code" in view of sub-section (2) of Section 4 of "the Code" read with Section 5 of "the Code". The said provisions o the general provisions of Section 155 of "the Code" in that Act. As a sequitur, as submitted by the learned Counsel, since no such provision excluding the application of Sections 155(2) and 155(3) of "the Code" exists in "the Act"
and thus, the same shall apply in the investigations under "the Act", if the offence thereunder is non-cognizable. If the offence under "the Act" is construed to be cognizable, the other provisions falling in Chapter XII of "the Code", including Sections 154, 157, 167 and 172 of "the Code" would come into play. Therefore, it is submitted that, compliance with the mandatory provisions of Chapter XII of "the Code" would not have caused prejudice to Enforcement Directorate, on the other hand, non-compliance therewith caused serious prejudice to the petitioner - accused and violated his Page 31 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined fundamental rights guaranteed under Article 21 of the Constitution of India.
The investigation into a cognizable offence is to be commenced by I.O. by following Sections 154 / 157 of "the Code", and investigation and arrest into non-cognizable offence is to be conducted by him after obtaining order under Section 155(2) and warrant under Section 155(3) of "the Code".
3.28 It is further submitted that, a person arrested can also be an accused in the Scheduled offence. Section 19 of "the Act" requires for a valid arrest - "reason to believe" - of knowingly committing an offence of laundering, (as defined under Section 3 in relation to "proceeds of crime" defined in Section 2(1)(u) derived from "Scheduled offence") punishable under Section 4, on the basis of material in possession. Such accusation, which is to be informed to the arrested person, would definitely have potential to subject him to criminal charge/prosecution. Therefore, the person apprehended on accusation of commission of an offence under "the Act" shall be an accused for the purpose of Article 20(3) of the Constitution of India, as per the ratio laid down in the Page 32 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Constitution Bench decision in the case of Ramanlal Bhogilal Shah (Supra).
3.29 It is further submitted that entire edifice of the case alleged against the petitioner is only on the strength of statements obtained purportedly under Section 50 of "the Act". According to the petitioner, such statements even under Section 50 of "the Act" are not admissible piece of evidence. 3.30 It is further submitted that "the Act" is a unique legislation. The scope of "the Act" had come under the scanner of the Supreme Court in the case of Nikesh Tarachand Shah v. Union Of India, reported in (2018) 11 SCC 1, referring para 11 thereof, it is submitted that an important ingredient of offence under "the Act" is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and "proceeds of crime" is defined under "the Act" by Section 2(1)(u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a Scheduled offence (which is referred to in judgment as the predicate offence). Thus, whosoever is involved, as aforesaid, in a process or activity connected with "proceeds of crime" as Page 33 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined defined, which would include concealing, possessing, acquiring or using such property, would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 3 of "the Act", therefore, contains all the aforesaid ingredients and before someone can be adjudged as guilty under the said provision, the said person must not only be involved in such process or activity in such proceeds of crime but must also project or claim it as untainted property. 3.31 It is further submitted that after arresting the petitioner and obtaining his custody, self-incriminating confessions were obtained from the petitioner by coercive methods. In Enforcement custody, the petitioner was again coerced, pressurized and threatened with dire consequences, including arrest of all his family members and relatives unless he submits to the dictates of the officers of the respondent No.2. The petitioner has truthfully narrated in his oral interrogation, all the requisite details and answers to all the questions orally put to him. However, instead of permitting the petitioner to record his statements as per his version and in his own handwriting, he was coerced to sign typed statements prepared by the officers of the respondent No. 2 without Page 34 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined knowing the contents thereof. By use of coercive measures, various such statements and endorsements thereon were obtained from the petitioner, against his will and contrary to the facts. The petitioner was not even permitted to read the contents of statements recorded by the officers of the respondent No. 2, and was directed to make a few corrections to project otherwise. The petitioner submits that false statements, which were fictitious creations of the officers, were forcefully thrusted upon the petitioner and the same are far from being voluntary and thus, even otherwise liable to be rejected.
3.32 It is further submitted that whilst in custody of the officers of respondent No. 2, the petitioner allegedly suffered self-incriminating statements purportedly recorded under Section 50 of "the Act", however, no recovery or discovery was made on the basis of the petitioner's alleged statements. Petitioner was not even identified by any witness. On the first available opportunity, the said confessions were retracted by the petitioner in his application for seeking bail and opposing remand. The arrest and continued custody of the petitioner is illegal, for being on the sole basis of inadmissible statements purportedly recorded under Section 50 of "the Act". Page 35 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined In addition, so far as the self-incriminatory statements of the petitioner himself are concerned, these retracted statements were admittedly recorded "after the arrest" of the petitioner, in support of his submission that the statements recorded after the arrest would not be admissible as it would be self-incriminating under Article 20(3) of the Constitution of India relying on a decision in the case of Ramanlal Bhogilal Shah (Supra).
3.33 It is further submitted that in the context of cognizable offence where statements recorded therein are held to be admissible evidence, those statutes such as TADA, POTA, MCOCA, etc. provide for special procedure for recording of confession, mainly time for reflection is being given for recording a statement under Section 164 of "the Code" with a warning that he is not bound to make a confession and that if made, the confession can be used against a maker thereof. 3.34 It is further submitted that the petition is not barred by constructive res-judicata, which is a principle applicable in civil proceedings, and has no application in a writ of habeas corpus. The legal issues raised herein were neither raised nor decided in the earlier habeas corpus petition dismissed on 16.10.2015. Page 36 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Moreover, specific liberty has been granted to the petitioner by the Supreme Court while observing that the writ petition filed under Article 32 would not come in the way of the petitioner filing any other writ petition. It is further submitted that thereafter again it was clarified that this Honourable Court can decide the petition on merits. After grant of bail, S.L.P. of respondents against bail order was dismissed by the Supreme Court despite such objections.
3.35 On the aforesaid submissions and relying on the decisions referred to hereinabove, it is submitted that this writ of habeas corpus be allowed and interim order granting bail to the petitioner may kindly be continued.
4. As against that, Mr. Devang Vyas, Senior Advocate, learned Additional Solicitor General of India, submitted that the present petition filed by the petitioner, in absence of any change in the circumstance as also in absence of any grounds agitated before this Court which were not available to the petitioner when his earlier petition for the very same relief came to be dismissed by a detailed reasoned order and challenge to the same before the Supreme Court by way of S.L.P. came to be withdrawn, cannot be entertained. Page 37 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 4.1 He has further submitted that the present petition is also not maintainable on the ground of res-judicata/constructive res-judicata. In support of the said submission, he relied on the case of T.P. Moideen Koya v. Government Of Kerala And Ors., reported in (2004) 8 SCC 106 for a proposition that once the petition of habeas corpus is dismissed under Article 226 of the Constitution of India and Special Leave Petition against the said order is filed and any decision has been rendered, then the same has attained the finality and the same cannot be re-agitated in a subsequent petition, except in two circumstances:- (i) Change of circumstance, and (ii) Ground/s which were not available with the petitioner earlier when it was decided and has become available at a later stage.
4.2 He has further submitted that, the issue of legality and validity of the detention of the present petitioner under a writ of habeas corpus has been decided by the Honourable Court earlier, which has attained finality after withdrawal of earlier S.L.P. filed by the petitioner challenging the said order. It has attained finality and no liberty is reserved by any Court of law to file a fresh petition. Therefore, it is submitted, the same Page 38 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined cannot be re-agitated or re-opened again by filing a subsequent petition. In support of his submission with regard to bar of res-judicata, reliance is again placed in the case of T.P. Moideen Koya (Supra) as also in the case of Devilal Modi v. Sales Tax Officer, reported in AIR 1965 SC 1150. He has further submitted that the petitioner is guilty of making misrepresentation as well as suppression of material facts before this Court, and therefore, the petitioner, who has scant regard for the law, is not entitled to any equitable relief under Article 226 of the Constitution of India, that too, in a successive writ of habeas corpus without any change of circumstance. 4.3 Drawing attention of the Court to averments made in para 3.12 of the petition, at page 7, it is submitted that the said petition was mainly challenging:- (i) Vires of Section 45 of "the Act", (ii) lack of jurisdiction of the investigating officer under "the Act" for effecting arrest under Section 19 due to lack of proper appointment under Section 49, and (iii) Non- communication of grounds of arrest to the petitioner with prayers inter-alia for issuance of a writ of habeas corpus. 4.4 Drawing attention of the Court to the earlier petition filed and the order passed by this Court, more particularly, the Page 39 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined earlier judgment annexed with this petition at page 154 it is submitted that not only writ of habeas corpus was prayed for, over and above the aforesaid relief, the impugned arrest order dated 01.09.2014 was requested to be decided along with the consequent remand proceedings, as arrest being manifestly illegal without jurisdiction, null and void-ab-initio for clear violation of :-
(i) The directives of the Honourable Supreme Court in the case of D.K. Basu v. State of West Bengal, reported in (1997) 1 SCC 416.
(ii) The provisions of "the Act" including amongst others of Section 19(1) of "the Act", which mandatorily prescribes the arrest to be made on the basis of such 'material possession', on the basis of which there exists 'reason to believe' that person is 'guilty' of an offence under "the Act"; 'which shall be recorded in writing' and pursuant to arrest to inform him of the grounds for such arrest.
(iii) Rules notified by Central Government vide GSR 446(E) dated 01.07.2005.
(iv) Notification GSR 44(E) dated 01.07.2005 issued by Central Government appointing Director to exercise the exclusive power conferred under Section 19 of "the Act".
(v) Articles 14, 21 & 22 of the Constitution of India. Page 40 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Therefore, it is submitted, the aforesaid prayers though prayed for are not granted and the said decision of this Court has attained finality. Therefore, petitioner is guilty of not placing correct facts before the Court and is placing only the convenient facts with a view to obtain interim order from the Court.
4.5 Drawing attention of the Court to para 3.18 of the petition, it is submitted, that he has also made false statement in it that pursuant to such liberty granted by the Supreme Court, the instant writ petition under Article 226 of the Constitution of India seeking issuance of a writ of habeas corpus is being filed by the petitioner. It is very specifically mentioned in it that the grounds urged in the instant petition were not urged in the earlier petition filed before this Court, which was dismissed on 16.01.2015 .
4.6 Drawing attention of the Court to the order passed by the Apex Court in SLP (Cr.)...CRLMP No. 7277 of 2012 at page 297 of the compilation, it is submitted that there is no such liberty granted to the petitioner for filing writ petition under Article 226 of the Constitution of India again. Page 41 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 4.7 It is further submitted that the very averment in the petition at para 3.18 suggests that this petition is not filed on any new available grounds, which were not available to the petitioner when the earlier petition was determined. Therefore, relying on the decision of Supreme Court in the case of T.P. Moideen Koya (Supra), it is submitted that this successive petition praying for writ of habeas corpus is required to be rejected on the said ground alone. For the issue of suppression of material facts and maintainability of petition, learned ASG has relied on a decision in the case of K.D. Sharma v. Steel Authorities Of India Ltd. & Ors., reported in (2008) 12 SCC 481. He has further submitted that since the arrest of the petitioner is neither unlawful nor the same is in violation of provisions of any other law or statute, more particularly, when there is a clear finding of the Division Bench of this Court that the arrest of the petitioner is legal and valid, the present petition should not be entertained. For the same, he has relied on a decision of Delhi High Court in the case of Moin Akhtar Qureshi v. Union Of India & Ors, reported in 2017 SCC OnLine Del 12108.
4.8 He has further submitted that the petitioner is not entitled to seek the writ of habeas corpus after the rejection of Page 42 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined his regular bail application, not only by Sessions Court but also by this Court vide its order dated 31.03.2015 in Cr.M.A. No. 3637 of 2015, which is at page 279 of the compilation. Not only that, against the said order, the petitioner had preferred S.L.P. (Cri.) No. 3978-79 of 2015, which also got dismissed by the Honourable Supreme Court and the copy thereof is annexed with the petition at page 294.
4.9 Drawing attention of the Court to the grounds A. to C. with regard to provisions of Section 45 of "the Act" along with the other provisions of "the Act", which has been considered and dealt with by the Division Bench of this Court in earlier habeas corpus petition, the finding recorded by the Court has attained finality after the Special Leave Petition filed against the order has come to be withdrawn by the petitioner. 4.10 He has further submitted that the Division Bench in the earlier writ petition praying for same relief considered various provisions of "the Act" as well as the case law cited in this regard along with the aspect of legality and validity of detention on the touchstone of Article 22 of the Constitution of India and held that the arrest of the petitioner does not violate Article 22 of the Constitution of India. The issue of production Page 43 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined of petitioner before the competent designated Court and remand granted by the competent Court has also been raised and considered by the Court in earlier petition. Therefore, it is submitted, it is not open for the petitioner to raise any such ground again.
4.11 He has further contended that so far as not following provision of Sections 167 and 172 of "the Code" is concerned, the petitioner could have raised such an issue in earlier petition, which was very much available at that time. The said contention based on those provisions available and not raised, cannot be said to be a change of circumstance or a change of ground to question his arrest in connection with the present offence in this successive writ of habeas corpus. It is further submitted that after the issue of detention attained finality, it is not open for the petitioner to challenge the substance of detention in a different context of a matter. Relying on a decision, to contend that violation of procedure prescribed under Section 167 of "the Code" cannot be agitated in a writ of habeas corpus, that too, at a belated stage in a successive petition in the case of Serious Fraud Investigation Office v. Rahul Modi & another, reported in (2019) 5 SCC 266, and therefore, the same is not maintainable. Page 44 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 4.12 Relying on the decision of Bombay High Court in the case of Chhagan Chandrakant Bhujbal vs Union Of India & Ors., reported in 2016 SCC OnLine Bom 9938, it is contended that all the issues and contentions raised by the petitioner in these proceedings were also raised before the Bombay High Court and the Bombay High Court has answered all those issues and writ of habeas corpus filed by petitioner therein came to be dismissed and the said decision has already attained finality. Therefore, he has submitted that this petition be dismissed.
5. Having heard the learned advocates for the appearing parties and going through the documents annexed with the petition as also decisions relied on by the parties, it emerges that this successive writ of habeas corpus is filed after the petitioner is arrested in connection with the offence, as aforesaid, and his application for bail came to be rejected by a competent Court i.e. Special Designated Court, and the said order is also confirmed by this Court in bail proceedings filed by the petitioner with detailed reasoned order and it's challenge to the same before the Supreme Court came to be dismissed, though, with a liberty to move the same after a period of 6 months thereof.
Page 45 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 5.1 However, instead of waiting for 6 months to be over and applying again for bail in connection with that offence after 6 months, as permitted by the Supreme Court, the petitioner has, within no time of dismissal of his bail application, filed this successive writ of habeas corpus, claiming to be on the grounds which were not raised in the earlier writ petition. 5.2 As such, in absence of any change in circumstance, that too, substantial change and not the cosmetic change and in absence of any grounds, which were not available to the petitioner when his earlier petition was determined, mere change of an advocate or swift change in the submission, though available at that time when earlier petition is determined, cannot be permitted to be agitated again in a successive petition to a judgment and order, which already attained finality.
Though it is vehemently objected that petition is barred by res-judicata or a constructive res-judicata, without entering into such debate, more particularly when, a detailed reasoned order is passed by this Court in this petition on 03.08.2015, considering that issue also and the said order having become final, as challenge to the same failed, it is required to be Page 46 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined considered in this petition whether it raises any grounds which were not available at the time when earlier petition was determined, or not.
5.3 In a writ of habeas corpus, maybe successive, only issue would be whether arrest and continued detention is legal or not. If a person is arrested by an officer duly authorized by law, produced before the Court and remanded to custody of such officer and then to the judicial custody, in absence of challenge to the said orders, no writ of habeas corpus could have been filed or entertained. Neither in the earlier petition nor in this successive petition, without there being any substantial change in the circumstance, there is no any challenge to the order passed by the competent Court committing the petitioner to custody and his application praying for an order of bail in connection with that offence having become final up to the Supreme Court. Merely because an advocate is changed and a submission is made in a different manner raising different issues, it can never be said that those submissions and the issues were not available to the petitioner when first petition was determined. It can never be said to be a ground to assail the custody of the petitioner but it can be said to be Page 47 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined different arguments for challenging the very same action which was already available when earlier petition is determined, and not raised till that order has attained finality up to the Supreme Court, petitioner cannot be permitted to raise such arguments again, as those arguments are not such that which could have become available only after his earlier petition is determined.
Therefore, this successive petition praying for writ of habeas corpus is required to be rejected on that ground alone.
However, very vehemently it is submitted by the learned Counsel for the petitioner that the offence under "the Act", though stated to be cognizable when "the Act" was enacted but by way of amendment in the year 2005, the statute was silent and the said part came to be omitted. Relying on a parliamentary debate, it is vehemently submitted that while envisaging difficulties in implementing the law, the coginizability of the offence under "the Act" came to be omitted purposefully, and therefore, the offence under "the Act" can be said to be non-cognizable.
5.4 Buttressing his arguments with the help of provisions under Section 155 of "the Code", it is submitted that once the Page 48 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined offence is non-cognizable, either police or any officer cannot arrest the accused without a warrant issued by the concerned Magistrate. Not only that, if he wants to investigate into the offence or effect an arrest of the accused, he must seek permission of the Court. Neither of the action is initiated by the officer concerned effecting arrest of the petitioner and investigating into the offence, his arrest as also continued detention has become illegal.
5.5 The said submission reflects total misreading of an amending Act, 2005, whereby the cognizability part came to be omitted by amending Act. However, the learned Counsel for the petitioner lost sight of the fact that though "the Act" was enacted in the year 2003, it was never enforced throughout the country. However, it was made enforceable from 01.07.2005 and when the whole Act came to be enforced, there was no provision under "the Act" except the title of Section 45, which states offences to be cognizable and non- bailable. It is vehemently submitted that title of the Section is not to be utilized for the interpretation of the provisions under "the Act". May it be a guiding factor but not the conclusive factor to determine the provisions under "the Act". Page 49 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined 5.6 Going through the provisions of "the Act", the day on which it is enforced, "the Act" was consciously silent as to cognizability. However, it can never be construed as non- cognizable. But when "the Act" was to be enforced, it was consciously omitted so as to deprive police authority from probable misuse of the special provisions made under "the Act" it could never be said to be a non-cognizable offence. Therefore, the contention of the petitioner that since "the Act"
was enacted, the provision says the offence under "the Act" to be cognizable but while it was enforced by way of amendment, the said provision is omitted that means it is non-cognizable, has no legs to stand. Therefore, invoking Section 155 of "the Code" by the officer under "the Act" while effecting arrest, who is empowered, is not at all required. The contention that for an inquiry, investigation or trial, procedure prescribed under "the Code" has to be followed, and the procedure for investigation into non-cognizable offence is prescribed under Section 155 of "the Code", and therefore, under "the Act", investigating officer/authority has to follow provisions of Section 155, is an incorrect impression of the learned Counsel appearing for the petitioner.
Page 50 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined The officers, who are entrusted with the duty of inquiring into or investigating into the offence under "the Act" are empowered to conduct survey, carry out search & seizure, search of a person, power of arrest, retention of properties, retention of records, as provided under the law and he has to inquire into or investigate into the same in accordance with the special Act. He need not resort to Section 155 of "the Code", as in absence of any provision contrary in "the Act", keeping in mind the sentence prescribed under "the Act", the offence under Schedule-II appended to "the Code" would become operational, and therefore, the offences under "the Act" when whole Act is enforced was cognizable since that date and with the recent amendments in "the Act", as specifically said so with a view to avoid any further conflict and room for such dispute. So, the offences under "the Act" since the date of its enforcement throughout the country, were cognizable. Since different procedure and provisions are made for the purpose of inquiry into/investigation into the offence under "the Act", any general provision made in "the Code" would be inconsistent with "the Act", and therefore, the provisions made under "the Act", would prevail, and therefore, the officer concerned is not supposed to invoke provisions of Chapter XII of "the Code", Page 51 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined which includes Section 155 of "the Code". Under "the Act", when there is a special procedure and special empowerment to the officer concerned for the purpose of inquiring into or investigating into is entrusted, it has an overriding effect and procedure prescribed under "the Code" is inconsistent with "the Act", and therefore, also officer concerned need not seek permission from the Magistrate to arrest the accused under "the Act" or carry out investigation into the offence under "the Act".
5.7 Over and above that, these very arguments were available at the time when first petition praying for writ of habeas corpus was filed and not raised, with the change of an advocate it cannot be termed as change of grounds to assail the judgment and order, which has attained finality praying for the very same relief, more particularly when arrest in connection with an offence and detention in judicial custody of the petitioner pursuant to arrest is held to be legal. Even if change of an advocate is construed to be change of circumstance to an available ground, which was available when earlier petition was determined, as concluded hereinabove, the offences under "the Act" were cognizable Page 52 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined since the day of enforcement of "the Act" and the officer, who has arrested the accused, was empowered to arrest the petitioner, and therefore, neither the arrest nor the detention in the custody at the time when it was effected and as on date, be said to be illegal. When his successive petition for writ of habeas corpus is considered, the offence is cognizable, and therefore, arrest can be effected without warrant by an officer authorized under "the Act" and he need not go to the Magistrate for issuance of warrant to effect the arrest of the accused. If, when the arrest is made it was legal, as he was committed to judicial custody, it was legal, even when his successive petition for a writ of habeas corpus is considered, is also legal, petitioner cannot be said to be in illegal confinement so as to entertain this petition again on the very same grounds which were available at the time when first petition was determined and specifically not raised, cannot be said to be change of circumstances so as to consider it again. 5.8 Even if it is considered again, in view of the fact that when the arrest was effected, the offence was cognizable and when his successive petition for a writ of habeas corpus is considered, it is specifically stated to be cognizable by making Page 53 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined provisions into "the Act" itself, so as to avoid any other dispute with regard to its cognizability, this writ petition cannot be entertained on that ground.
5.9 Though it is submitted that from the series of orders passed by the earlier Division Benches, this Honourable Court has been awaiting the final view of the Supreme Court in the case of Vijay Madanlal Chaudhary & Ors. v. Union Of India & Ors., reported in 2022 SCC OnLine 929 and subsequently, in review applications that are pending post said judgment, the issues are pending before the Honourable Supreme Court will have a direct bearing on the adjudication of issues on merits pending before this Court.
The said argument is not required to be entertained for the reason that in the case of Vijay Madanlal Chaudhary (Supra), Supreme Court has put to rest several questions raised under "the Act" answering constitutional validity and interpretation of certain provisions of other statutes, including the Customs Act, 1962, the Central Goods & Services Tax Act, 2017, the Companies Act, 2013, the Prevention of Corruption Act, 1988, the Penal Code, 1860 and the Code of Criminal Procedure, 1973, which were under challenge before the Page 54 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Supreme Court. However, Supreme Court confined the challenge to the provisions of "the Act" only and answered the same holding it to be constitutionally valid. 5.10 The review petitions, which are pending before the Supreme Court, as submitted by the learned Counsel appearing for the petitioner and the copy of order shown to the Court was restricted to two issues only but which were those two issues, is neither mentioned in the order nor stated by the learned Counsel for the petitioner. However, pendency of review petitions before the Supreme Court will not detain this Court from considering this writ petition, which is admitted in the year 2015 and ripe for final hearing, as ultimately whatever order is passed in this petition would be open to challenge before higher forum, even if review petitions are pending, and challenge to the same would be governed in accordance with outcome of the order in review petitions. 5.11 So far as Transfer Petition (Cri.) No. 461 of 2023 filed by the petitioner before the Supreme Court, invoking Article 139A of the Constitution of India is concerned, as submitted by the learned advocate for the petitioner, the same came to be dismissed as withdrawn. Therefore, also this Court need not Page 55 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined wait when it was in the midst of hearing, Transfer Petition was filed and concluded hearing even prior to the outcome of the same.
5.12 Strong reliance is placed by the learned Counsel appearing for the petitioner on the decision of Delhi High Court in the case of Rajbhushan Omprakash Dixit (Supra) decided by the Division Bench of Supreme Court on the issue whether offences under "the Act" are cognizable or not, more particularly paras 24 to 35 of the said decision to submit that the opinion expressed by the Division Bench of the Delhi High Court to the submissions made that the offences under "the Act" are non-cognizable. Relying on the Statement of Objects and Reasons of Prevention of Money Laundering (Amendment) Bill and Debates in Lok Sabha, it is submitted that the arrest made by the officer concerned is illegal as he had neither sought for any permission from the Magistrate to arrest the accused in connection with the offence nor had he obtained permission of the Magistrate to investigate into the said offence against the accused as it is non-cognizable offence. 5.13 The decision of the Division Bench of Delhi High Court in the case of Rajbhushan Omprakash Dixit (Supra) misses Page 56 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined the aspect that omitting every offences punishable under "the Act" to be cognizable, which was there when "the Act" was enacted but never enforced, while enforcing "the Act", omitting that part or provision or deleting the same, the offence would not become non-cognizable automatically. It was with a view to see that only the officers including certain category of police, who are empowered under "the Act", investigate into the offence under "the Act" and not all the police officers. Therefore, under Section 19 of "the Act", only a Director or a Deputy Director or an Assistant Director or any other Officer authorized are empowered to arrest the offender whereas if offence is stated to be cognizable, every police officer can also arrest offender without warrant. To avoid another conflict, providing no cognizance of any offence punishable under Section 4 of "the Act", except upon a complaint made in writing by the Director or any other officer authorized by the Central Government, by the special Court, whereas what will happen to the arrest made by the police and which would be the Court to try the offence, it appears to be omitted/deleted. 5.14 However, cognizability or non-cognizability of the offences under "the Act" would not detain this Court any Page 57 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined further so far as present petition is concerned, as in our view, the arrest of the accused for commission of an offence under "the Act" is made by an officer empowered under "the Act" and in accordance with the provisions made under "the Act", which is already determined in an earlier petition filed before the Court and it has attained finality. Once arrest is held to be legal, his detention or committal to the custody either to the officer concerned or of the Court, cannot be said to be an illegal confinement, and therefore, writ of habeas corpus, that too, successive writ of habeas corpus, cannot be entertained. 5.15 So far as applicability of Chapter XII of "the Code" is concerned, the said submission made in respect of investigation into the offence under "the Act" is concerned, is misconceived. In absence of any contrary provision made under any special Act, classification of offences as cognizable or non-cognizable, bailable or non-bailable and the Court by which triable, would be governed under the II nd Schedule of "the Code". Therefore, whether offence under any special Act is cognizable or not, in absence of any contrary provision made in the special Act, would be dependent on the sentence provided therein for the offences with which it is punishable. Under "the Act", there is no inconsistent provision with that of Page 58 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined "the Code" so far as the II nd Schedule is concerned. Therefore, keeping in mind the sentence provided under Section 4 of "the Act", all offences would be cognizable and non-bailable. However, provision made in II nd Schedule with regard to the Court by which it is triable, since it is inconsistent with "the Act", the said provision would not be applicable so far as it relates to the Court by which offences under "the Act" is triable, in view of Section 65 of "the Act". 5.16 At the same time, when the officers duly trained for dealing with the inquiry or investigation into the offences under "the Act" have only been authorized to investigate the case with a power to arrest the accused, on fulfillment of the provision made under Section 19 of "the Act", they need not seek permission of the Magistrate, as provided under Section 155 of "the Code", as it would again be inconsistent with the specific provision made under "the Act". Once the offence under "the Act", in view of Schedule-II of "the Code", becomes cognizable, the officer, empowered under "the Act" to investigate the offence under it need not seek permission under Section 155 of "the Code", as submitted by the learned Counsel for the petitioner.
Page 59 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined In absence of any inconsistent provision of Section 167 of "the Code", which also falls in Chapter XII of "the Code" made in "the Act", it has to be followed and that would be the only correct interpretation consistent with the provisions made under "the Act".
Thus, when "the Act" was enacted, the offences under "the Act" were cognizable and by way of amendment, while enforcing "the Act", the said provision is deleted or omitted would not render the offences under "the Act" to be non- cognizable. It is only when despite the sentence prescribed, as stated in Schedule-II of "the Code" to say offence to be cognizable or non-bailable, making specifically offences under "the Act" to be non-cognizable, the provisions under Section 155 of "the Code" requiring the officer concerned to seek permission of the Magistrate before arresting the accused or entering upon investigation would arise. Decision in the case of Om Prakash (Supra) would not be applicable to the present case, as the scheme of Central Excise Act, 1944 was considered therein and in view of Section 9A of that Act, certain offences are specifically stated to be non-cognizable under that Act, and therefore, it was interpreted to be bailable, Page 60 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined even in view of Schedule-II of "the Code". Therefore, the said decision cannot be relied upon by the learned Counsel appearing for the petitioner in support of the submission that officer concerned before effecting arrest under "the Act" is required to follow provisions of Section 155 of "the Code". 5.17 In the Central Excise Act, 1944, offence under "the Act"
is specifically stated to be non-cognizable. Therefore, under the special Act, when offence is stated to be non-cognizable resort to Schedule - II of "the Code" is not required at all for determining whether the offence is cognizable or non- cognizable. Once under the special Act, like Central Excise Act, offences under that Act specifically stated to be non- cognizable, the necessary procedure for the inquiring or investigating into the offences under that Act, in absence of any provision made in the special Act i.e. Central Excise Act, one has to resort to the provisions made under "the Code".
Whereas when "the Act" is enforced, the special statute is silent about offences under "the Act" to be cognizable or non-cognizable, resort to Schedule - II of "the Code" be made, in absence of specific bar under "the Act". Page 61 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined In view thereof, for the purpose of inquiring and investigating into the offence under "the Act", in absence of any contrary provision made in "the Act", provisions of "the Code" would be applicable. Under Section 155 of "the Code", no police officer can investigate into non-cognizable offence without the order of a Magistrate. However, officers authorized under "the Act" to inquire or investigate into the offence under "the Act" are not police officers and when there is no provision like Central Excise Act made, making offences under "the Act"
to be non-cognizable, Schedule - II of "the Code" would be made applicable for stating the offence to be cognizable or non-cognizable based upon the sentence prescribed.
In view of the fact that there is no contrary provision made under the special Act i.e. "the Act", the Schedule - II of "the Code" would be applicable. Therefore, the confusion attempted to be created by the learned Counsel for the petitioner, based on offences under "the Act" to be cognizable or non-cognizable, is without any substance. Putting at rest the controversy attempted to be raised by the accused of offence under "the Act", with effect from 01.08.2019, an explanation to Section 45 of "the Act" came to be inserted, which reads as Page 62 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined under:- "
45. Offences to be cognizable and non-bailable.-- (1) ...
(2) ...
[Explanation.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non- bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the conditions enshrined under this section.]". By way of said explanation, for removal of doubts, it is clarified that expression "Offences to be cognizable and non- cognizable', shall mean and shall be deemed to have always meant all offences under "the Act" to be cognizable and non- bailable notwithstanding anything contrary contained in "the Code". At the same time, though officers empowered under "the Act" to arrest the accused subject to fulfillment of the conditions under Section 19, they are again not a police officer despite offence is stated to be cognizable. At the same time, while enforcing "the Act" itself, sub-section (1-A) of Section 45 Page 63 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined came to be inserted, prohibiting police officers investigating into an offence under "the Act" unless specifically authorized by the Central Government by general or special order and subject to such conditions, as may be prescribed.
Therefore, any provision made under "the Code" for the purpose of inquiring or investigating into the offence by the police officers shall not apply to the offences under "the Act"
unless specifically provided for in "the Act". The provision under "the Code" for inquiry and investigation into the offence would be applicable to the police officers, who are inquiring or investigating into any offence. However, if any special statute provides for any inconsistent provision for the purpose, the provisions under "the Code" will not be applicable being general law for the purpose of inquiring and investigating into the offence. Considering the provisions made under "the Act"
and "the Code", with applicability of "the Code" to the offences under "the Act" so far as they are not inconsistent with the provisions of "the Act" to arrest, search and seizure, investigation ... with an overriding effect, as provided under Section 71 of "the Act", is concerned, the day on which petitioner came to be arrested, the officer concerned was authorized to arrest him for the offence punishable under "the Page 64 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Act" and challenge to that arrest in respect of his authority and provisions made under Section 19 is put to rest in an earlier petition filed by the petitioner, it is not open to challenge in this successive petition for writ of habeas corpus. At the same time, presuming it to be maintainable, the date on which this petition is taken up for consideration, the arrest which is made, cannot be said to be illegal in view of the fact that offences under "the Act" are stated to be cognizable and non-bailable. Arrest which was made cannot be termed as illegal as on date and when pursuant to legal order made, remanding the accused to the custody of officer concerned as also judicial custody thereafter, cannot be termed to be illegal. As on date, petitioner has never challenged his order of remand to judicial custody. Not only that, the Court of competent jurisdiction by a detailed order, rejected his application for bail. Even this Court has also rejected his application for bail. Not only that, even Supreme Court has dismissed his S.L.P. praying for an order of bail in connection with the offence for which he is arrested under "the Act".
5.18 There is no necessity to enter into a controversy raised between the parties whether res-judicata or constructive res- Page 65 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined judicata will apply to the petitions under writ of habeas corpus or not, for the simple reason what is sought to be argued as new grounds, were the grounds available to the petitioner, when his earlier petition was heard and finally determined against him and the challenge to the same has failed, maybe by withdrawal of S.L.P., with the change of an advocate the arguments which were though available and were not argued, cannot be said to be a substantial change so as to entertain successive petition praying for a writ of habeas corpus. All those submissions in respect of authority of the officer, who effected the arrest, came to be determined in an earlier petition against petitioner and the challenge to the same having failed, on any other ground that arrest cannot be said to be illegal, more particularly when pursuant to the arrest, Court has remanded the petitioner to judicial custody and that order is also not challenged in any proceedings. The order passed by this Court in earlier petition has attained finality with the failure of the challenge made there against with no permission granted by the Supreme Court to challenge it afresh. Therefore, the submission made by the learned Counsel for the respondent authority that this successive petition for writ of habeas corpus would not be maintainable as Page 66 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined there is neither any change of circumstances nor the grounds which are sought to be argued now, be said to be not available when first petition was filed and concluded and the said order having attained finality, it cannot be urged as a different ground. The argument on whatever ground which is available when earlier petition was filed when argued in a successive petition, maybe in a writ of habeas corpus, cannot be said to be on different ground which were not available when the earlier petition was decided, there remains no finality to any order; however, the points which are argued based on applicability of Chapter XII of "the Code" and much emphasis laid on Section 155 of "the Code" are already dealt with earlier.
5.19 The reliance placed on a decision in the case of Manubhai Ratilal Patel Tr. Ushaben v. State of Gujarat and Ors., reported in (2013) 1 SCC 314 to submit that habeas corpus petition cannot be entertained when a person is committed to judicial custody or police custody by competent Court by order, which prima-facie does not appear to be without jurisdiction nor which is passed in absolutely mechanical manner nor is wholly illegal.
Page 67 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined It would be profitable to reproduce same as under:-
Para 31 ..."It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima-facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal".... Discussed as stated hereinabove, neither the arrest made by the officer concerned at the relevant time, nor order of remand either to the custody of officer or judicial custody, passed by the concerned Magistrate/Judge can be said to be illegal at the time when it is effected nor it can be said as on the date of consideration of this successive writ of habeas corpus to be illegal, this successive writ of habeas corpus cannot be entertained on the grounds submitted by the learned Counsel for the petitioner.
5.20 The submissions made by the learned Counsel for the petitioner that the arrest of the petitioner is based on statement recorded under Section 50 of "the Act" are not admissible in evidence based on the decision in the case of Tofan Singh (Supra). The submission that there is no material against the petitioner to detain him in custody except the statement recorded under Section 50 of "the Act" and such Page 68 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined statement, having been recorded by the officer concerned cannot be said to be admissible, is not required to be dealt with as the issue whether there is any material to arrest the accused or not has already been examined by the Court in an earlier petition as also by the competent Court while remanding the accused to the judicial custody and once arrest is held to be legal, the said argument requires appreciation of material/evidence in an appropriate proceedings at appropriate stage. However, when it is to be considered whether the arrest is made by a person authorized by law and whether petitioner can be said to be illegally confined pursuant to arrest or not, the said submission has no relevance while determining writ of habeas corpus, that too, successive writ of habeas corpus.
5.21 The reliance placed on the decision in the case of Chhagan Chandrakant Bhujbal (Supra) by the learned Counsel for the respondent authority applies with full force from all corners on all the issues agitated by the petitioner, having answered against the petitioner in the said decision. 5.22 Once it is held that the initial arrest and detention in the judicial custody by a judicial order, which has become final and Page 69 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined not challenged in any proceedings, cannot be said to be illegal, this successive writ of habeas corpus cannot be entertained further. All those other issues can be agitated by the petitioner for the purpose of either bail or discharge or ultimate acquittal in the trial.
5.23 Reliance placed on the decision, as the arguments of the petitioner in the case of Rajbhushan Omprakash Dixit (Supra) is also misplaced, as by the said order, Division Bench of the Delhi High Court referred the matter to a larger Bench, as it did not agree with the decision of a coordinate Bench of that Court in the case of Moin Akhtar Qureshi (Supra) as also Vakamulla Chandrashekhar v. Enforcement Directorate & Anr. of that very Court rendered in W.P. (CRL.) No. 852 of 2017 dated 08.05.2017 and referred the matter under consideration to a larger Bench saying that both these decisions referred to hereinabove requires reconsideration. However, there appears no final conclusion reached by the Division Bench of the Delhi High Court in the said decision. Over and above that, decision in the case of Vakamulla Chandrashekhar (Supra) was doubted, which held that "Notwithstanding the 2005 amendment to Section 45 Page 70 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined of the PMLA, there is no positive indication in Section 45 that the offences under the PMLA had become non-cognizable".
Despite noting in para 28 of the judgment that "After the amendment, the police cannot take cognizance of the offence under Section 3 of the PMLA Act", the Division Bench observed that "Even if the offence is no longer cognizable for the purposes of "the Code" i.e. the police cannot take cognizance for the said offence, it does not follow that the authority under "the Act" would not carry out investigation on their own". Based on it, it did not find in consonance with the express legislative intent, evident not only on a plain reading of the amended Section 45 of the PMLA, but even with reference to the Statement of Objects and Reasons to the PMLA Amendment Bill and the debates in the Lok Sabha. As such it did not determine an issue as a binding precedent while referring it to larger Bench, not agreeing with the binding precedents of two Division Benches of the very same Court, it cannot be termed as a precedent even having a persuasive value. The opinion expressed therein cannot be followed for the simple reason that, whether offence is cognizable or not, as on the date of enforcement of "the Act" is irrelevant when officer, who effects arrest under Section 19, authorized and Page 71 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined fulfilling the conditions therein, it cannot be held to be illegal and production of the arrested accused before the competent Court, sending him in judicial custody also cannot be said to be illegal, this Court cannot wait till the decision of a larger Bench on reference made by Division Bench of the Delhi High Court in the case of Rajbhushan Omprakash Dixit (Supra) as this Court is in full agreement with the decisions rendered by Bombay High Court in the case of Chhagan Chandrakant Bhujbal (Supra), Vakamulla Chandrashekhar (Supra) & Moin Akhtar Qureshi (Supra) of Delhi High Court, and Karam Singh & Ors. v. Union Of India & Ors., rendered in C.W.P. No. 3317 of 2015 of Punjab & Haryana High Court, and therefore, the said contention is hereby rejected. 5.24 The Bombay High Court in the case of Chhagan Chandrakant Bhujbal (Supra) has also very well considered the debates of parliament, Statement of Objects and Reasons, Amendment Act, 2013, several provisions of "the Act" and majority of the decisions (almost all relied upon by the learned Counsel for the petitioner). As also order dated 03.08.2015 rendered in this very proceeding was also relied on by the learned Counsel for contending that the offences under "the Page 72 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined Act" are not cognizable and even if they are cognizable, the procedure prescribed under Chapter XII of "the Code" is bound to be followed, otherwise Article 21 of the Constitution of India would be violated, is rightly not accepted by the Court as it was at an interim stage and no final conclusion is reached. The Division Bench of Delhi High Court has rightly not relied on the said decision for the very same reason. The Bombay High Court has also, relying on decisions of Supreme Court, held that "An interim order which does not finally and conclusively decide an issue, cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima- facie findings are only tentative". For the very same reasons, the referring order to a larger Bench of the Division Bench of Delhi High Court in the case of Rajbhushan Omprakash Dixit (Supra) cannot be relied on, as even no tentative conclusion is reached therein but merely considering the debate of parliament, contention raised on the side-notes i.e. Heading of the Section, the Division Bench concluded that two decisions of Delhi High Court of the coordinate Benches were required to be reconsidered, and therefore, referred that case to a larger Bench. Therefore, the submission that what is recorded in that order be considered as an argument of the Page 73 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined learned Counsel for the petitioner is also required to be rejected as those very arguments were advanced before the Bombay High Court in the case of Chhagan Chandrakant Bhujbal (Supra) and were not accepted.
5.25 Furthermore, the order of the Delhi High Court in the case of Rajbhushan Omprakash Dixit (Supra) referring the matter to a larger Bench, is again contrary to the decision in the case of Serious Fraud Investigation Office (Supra) of the Supreme Court. So far as it determines issue with regard to maintainability against judicial order remanding the accused to the custody, maybe police or judicial, as held in that decision of the Supreme Court, proper remedy there against would be recourse to appropriate appellate or revisional proceedings and not the writ of habeas corpus. As such, the decision of the Supreme Court in the case of Serious Fraud Investigation Office (Supra) is subsequent to the referring order by the Delhi High Court in the case of Rajbhushan Omprakash Dixit (Supra), and therefore, it would not have been considered by the Delhi High Court but, at any rate, the learned Counsel, who appears all throughout in such matters and aware of all latest law, was expected to refer the decision Page 74 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined of the Supreme Court in the case of Serious Fraud Investigation Office (Supra) before harping on the referring order of the Division Bench of the Delhi High Court, saying it to be the contention of the learned Counsel on behalf of the petitioner.
5.26 The Supreme Court had an occasion to consider and answer the whole scheme of "the Act" as also the arguments advanced by the accused on one hand and the prosecution on the other, relying on almost all the decisions which have been relied on by the learned Counsel for the petitioner as also the learned Counsel for the respondents in the case of Vijay Madanlal Chaudhary (Supra), putting to rest all the issues raised by the learned Counsel for the petitioner relying on the very same decisions which have been relied on here, whereby bunch of petitions challenging validity and interpretation of provisions of "the Act" and the procedure followed by the E.D. while inquiring/investigating into offences under "the Act"
being violative of the constitutional mandate. The Supreme Court recorded conclusion in the case of Vijay Madanlal Chaudhary (Supra) in para 467, answering all the questions raised by the petitioner herein, relying on all the decisions cited at the bar, including the one that the statement recorded Page 75 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined by the authorities under Section 50 of "the Act" are not hit by Articles 20(3) and 21 of the Constitution of India.
6. While we were finalizing this judgment, we came across the judgment of the Supreme Court having neutral citation 2023 INSC 677 in the case of V. Senthil Balaji v. The State Represented by Deputy Director and Ors., rendered in Criminal Appeal Nos. 2284-2285 of 2023 dated 07.08.2023, wherein alongwith other Senior Counsels, Mr. Vikram Chaudhary, learned Counsel, who represents the petitioner herein, also appeared before the Supreme Court in that case as referred to in para 13 of the aforesaid decision. Though names of two other eminent Senior Counsels for the appellants therein is referred to therein, all the contentions which are raised before this Court in successive writ of habeas corpus, which have been answered by the Supreme Court are against the appellants therein. As coming out from para Nos. 29 and 30, it is held that as a matter of rule, an order of remand by judicial officer, culminating into a judicial function cannot be challenged by way of a writ of habeas corpus, while it is open to the person aggrieved to seek other statutory remedies. Here in the present case, order committing the petitioner to the Page 76 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined judicial custody has not been challenged and if it is challenged, it should be by way of other statutory remedy available with him. At the same time, his bail application has come to be dismissed by the competent Court and it has attained finality, as it is dismissed by the Supreme Court also. The arguments based on Sections 4 and 5 of "the Code" for the purpose of investigation invoked has already been answered by the Supreme Court in the aforesaid decision and conclusion is reached in para 45 thereof, which reads as under;-
"45. Sub-section (2) to section 4 of the CrPC, 1973 amplifies the fact that any inquiry or investigation, along with their process, over an offence should necessarily be only under that statute and not under the CrPC, 1973. The aforesaid position has been reiterated under Section 5 of the CrPC, 1973 whereby a distinct clarification has been given that the CrPC, 1973 will not stand in the way of the operation of special law. Thus, a conjoint reading of Section 65 of the PMLA, 2002 along with Sections 4 and 5 of the CrPC, 1973 leaves no room for doubt on the precedence of the former over the latter when it comes to investigation."
In para 88 thereof, summation of law as declared by Supreme Court is as under;
Page 77 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined " 88. SUMMATION OF LAW:
i. When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial.
ii. Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the person arrested. For such noncompliance, the Competent Court shall have the power to initiate action under Section 62 of the PMLA, 2002.
iii. An order of remand has to be challenged only before a higher forum as provided under the CrPC, 1973 when it depicts a due application of mind both on merit and compliance of Section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.
iv. Section 41A of the CrPC, 1973 has got no application to an arrest made under the PMLA 2002. v. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation - 60 or 90 days, as a whole.
vi. The words "such custody" occurring in Section 167(2) of the CrPC, 1973 would include not only a police custody but also that of other investigating agencies. vii. The word "custody" under Section 167(2) of the CrPC, 1973 shall mean actual custody.
Page 78 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023
NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined viii. Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handy work of investigating agency would not act as a restriction.
ix. Section 167 of the CrPC, 1973 is a bridge between liberty and investigation performing a fine balancing act. x. The decision of this Court in Anupam J. Kulkarni (supra), as followed subsequently requires reconsideration by a reference to a larger Bench.
In that view of the matter also, this petition requires rejection.
7. In view of the aforesaid discussion, the successive writ of habeas corpus filed by the petitioner is required to be rejected and it is hereby rejected. Rule is discharged.
Interim-order passed by this Court dated 03.08.2015, ordering release of the petitioner on bail, stands vacated.
Sd/-
(UMESH A. TRIVEDI, J.) Sd/-
(M. K. THAKKER, J.) Page 79 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023 NEUTRAL CITATION R/SCR.A/4247/2015 CAV JUDGMENT DATED: 09/08/2023 undefined At this stage, after pronouncement of the judgment, Mr. Chetan K. Pandya, learned advocate for the petitioner, prays for stay of the present judgment for a period of 4 weeks, or in the alternative, time to surrender be granted for a period of 4 weeks, as he is on bail by way of an interim order by order dated 03.08.2015.
Having considered the request, since our judgment is based on decisions of the Supreme Court determining the issues much earlier as also recent decision where also the learned Counsel for the petitioner appears and raised very similar ground before the Supreme Court, which has been repelled by the Supreme Court, the present judgment need not be stayed. However, since the petitioner is on bail by way of order dated 03.08.2015, we deem it fit to grant him time to surrender for a period of two (02) weeks from today.
Sd/-
(UMESH A. TRIVEDI, J.) Sd/-
(M. K. THAKKER, J.) Raj Page 80 of 80 Downloaded on : Sun Sep 17 00:51:06 IST 2023