Chattisgarh High Court
Ravi Uppal vs Directorate Of Enforcement on 22 March, 2025
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2025:CGHC:13936
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 1961 of 2024
Order reserved on 23/09/2024
Order delivered on 22/03/2025
Ravi Uppal S/o Late Jagdish Chandra Uppal Aged About 44 Years R/o
Block-3, Plot 5, Nehru Nagar, East Bhilai (C.G.) Currently R/o P.O. Box No.
453849, Dubai United Arab Emirates
... Petitioner
versus
1 - Directorate Of Enforcement Through Assistant Director, Raipur Zonal
Office, A-1, Block, 2nd Floor, Pujari Chambers, Pachpedi Naka, Raipur,
(C.G.)
2 - State Of Chhattisgarh Through Its Secretary To Department Of Home,
Mahanadi Bhawan, Atal Nagar, Naya Raipur, Raipur (C.G.)
3 - Director General Of Police State Of Chhattisgarh, Police Head Quarter,
Atal Nagar, Naya Raipur, Raipur (C.G.)
... Respondents
(Cause title taken from Case Information System)
For Petitioner : Mr. Kishor Shrivastava, Senior Advocate
along with Mr. Ashutosh Pandey, Advocate
For Respondent No.1/ED : Mr. Zoheb Hossain, Advocate (through
virtual mode) and Dr. Saurabh Kumar
VEDPRAKASH
DEWANGAN Pande, Advocate
Digitally signed by
VEDPRAKASH
DEWANGAN
Date: 2025.03.22
19:24:49 +0530
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For Respondents/State : Mr. Vivek Sharma, Additional Advocate
General and Mr. Arpit Agrawal, Panel Lawyer
Hon'ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Order
1. The present petition has been preferred under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order
dated 04.09.2023 (Annexure A/1), passed by learned Special Judge
(Prevention of Money Laundering Act)/4th Additional Sessions Judge,
Raipur, in ED Case No. 1 of 2024, whereby the learned trial Court
has issued non-bailable warrant (open-ended) against the petitioner.
The petitioner has prayed the following reliefs in the instant petition:
"It is, therefore, prayed that this Hon'ble Court may
kindly be pleased to allow the present petition and
quash order of issuance of Non-Bailable warrant and
the Warrant of arrest in ECIR No. RPZO/10/2022 case
titled as Satish Chandrakar Vs. Enforcement
Directorate and Others, issued against the petitioner
herein passed by Learned Special Court, PMLA
Raipur dated 04/09/2023 in the interest of justice"
2. The brief facts of the case are that the ECIR bearing No.
RPZO/10/2022, dated 06.10.2022 and amended ECIR dated
02.09.2023 has been registered against the present petitioner and
other accused persons for the offence under Sections 3 and 4 of
Prevention of Money Laundering Act, 2002 (hereinafter called as
PMLA, 2002"). In the ECIR, it is alleged that about 6 FIRs have been
registered against the various accused persons for the offences of
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Cheating and Criminal Conspiracy, which are the scheduled offences
under the PMLA, 2002. The said FIRs have been registered, whose
details are given herein below:
(i) FIR No. 112 of 2022, dated 30.03.2022, registered at
Police Station Mohan Nagar, District Durg for the
offence under Sections 120B and 420 of IPC,
(ii) FIR No. 206 of 2023, dated 02.06.2023 registered at
Police Station Cyber Crime, Vishakhapatnam
Commissionerate, Andhra Pradesh,
(iii) FIR No. 37 of 2023, dated 17.03.2023 registered at
Police Station Bhilai Bhatti, District Durg for the
offence under Section 420 of IPC,
(iv) FIR No. 86 of 2023, dated 27.02.2023 registered at
Police Station Chhavani, District Durg for the offence
under Section 420 of IPC.
(v) FIR No. 336 of 2023, dated 10.08.2023 registered at
Police Station Gudhiyari, District Raipur for the
offence under Sections 420, 34 of IPC.
(vi) FIR No. 685 of 2023, dated 11.08.2023 registered at
Police Station Khamtarai, District Raipur for the
offence under Section 420 of IPC.
3. On 06.10.2022 the respondent/ED initiated an Enforcement Case
Information Report (in short 'ECIR') No. RPZO/09/2022 with regard
to the predicate offence bearing No. 112/2022 dated 30.03.2022
under Sections 120-B and 420 of IPC registered at Police Station
Mohan Nagar, Durg, Chhattisgarh. The final report in the said FIR
bearing No. 157/2022 was submitted on 29.07.2022. An addendum
ECIR No. RPZO/10/2022 to the ECIR/RPZO/09/2022 was placed on
record on 06.10.2022 with reference to the above-mentioned FIRs.
4. On 30.10.2023, the co-accused Shubham Soni was served with a
summons in ECIR/RPZO/10/2022 claiming in which that he is
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owner/promoter of the Mahadev Book App. On 13.11.2023, a
summons under Section 50 of PMLA, 2002 bearing No. 1337, in
ECIR/RPZO/10/2022 was issued by the ED from its e-mail ID
"[email protected]" to the petitioner, which was received by him in
his e-mail "[email protected]" on 13.11.2023 itself. The said
summons stipulated the date for his appearance was 15.11.2023 and
only one day notice to adhere to the summon was given to the
petitioner, despite knowing the fact that the petitioner is resident of
Dubai. Since the petitioner was not in India, it was not possible to him
to appear before the ED at Raipur, Chhattisgarh on stipulated date.
On 17.11.2023, the petitioner was provided a comprehensive and
detailed response to the summon received by the ED, wherein he
denied his involvement in any illegal activity in India and apprehends
that his name has been falsely implicated in the case. He further
requested the ED to furnish the detailed particulars and grounds for
issuance of summons, so that he may take necessary measures, if
required.
5. On 01.09.2023, the ED issued summons under Section 50 of the
PMLA, 2002 to the petitioner knowing fully well that the petitioner
was detained in Australia and asked him to appear on 02.09.2023
before the ED. The next summons was again issued on 02.09.2023
and the petitioner was asked to appear on 04.09.2023. The said
summons was issued for serving it at the residential address of the
petitioner in India. Despite knowing the fact that he is a resident of
Dubai, which is non-compliance of the guidelines of the Ministry of
Home Affairs bearing No. 25016/17/2007-Legal Cell, dated
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11.02.2009. Since the above-mentioned summons was issued at
residential addresses in India, it was not served upon the petitioner
and thereafter, he came to know through diverse channels that a
warrant of arrest has been issued by the learned Special Court,
Raipur. On 04.09.2023, the learned Special Court (PMLA-2002)
Raipur, Chhattisgarh issued a non-bailable warrant (open-ended)
against the petitioner for his personal appearance. This order was
passed by the learned Special Court on 04.09.2023 on an application
filed by the respondent/ED under Section 70 of the CRPC read with
Section 65 of PMLA-2002. This order is under challenge in the
present petition.
6. Subsequent to the non-bailable warrant (open-ended) issued by the
Special Court (PMLA-2002), Raipur Chhattisgarh, a "Red Corner
Notice" was issued by Interpol with reference No. A-10277/11-2023
on 08.11.2023 against the petitioner. On 20.10.2023, the first
prosecution complaint was filed by the respondent/ED, and 03
supplementary prosecution complaints have been filed by the
prosecution in the case.
7. At the outset, learned counsel for the respondent/ED would submit
that in a similar matter, in which the Special Judge (PMLA) had
issued the non-bailable warrant against the accused and the order
issuing the non-bailable warrant was challenged by the accused
before the Delhi High Court. During the proceeding, the
respondent/ED, on instruction, submits that the execution of non-
bailable warrant against the petitioner may be suspended till the next
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date of hearing, if the petitioner joins the proceedings before the
learned Special Court (PMLA) Raipur and executes an undertaking
for the same and the non-bailable warrant may be canceled
thereafter. Since, the petitioner was also willing to join the
proceedings before the learned trial Court, the Delhi High Court
passed the order on 30.05.2024 and kept the order dated 22.12.2023
in abeyance till the next date of hearing and directed the petitioner to
join the proceeding before the learned trial Court within one week.
Relying upon the order dated 30.05.2023, passed by Delhi High
Court in Criminal Revision Petition No. 724/2024 and Criminal M.A.
No. 16705/2022 (Sumit Chadha v. Directorate of Enforcement),
learned counsel for the respondent/ED submits that similarly, if the
present petitioner is willing to appear before the learned trial Court,
then the execution of non-bailable warrant may be suspended till that
time and then the petitioner may join the proceeding before the
learned trial Court, as the Delhi High Court has done it.
8. The learned Senior Counsel appearing for the petitioner, on
instruction, has not accepted the proposal given by the respondent/
ED and has submitted that the respondent/ED is lying a trap to catch
the petitioner, who in any manner, is not involved in the offence.
Since, the proposal given by the respondent/ED was refused by the
petitioner, this Court proceeded with the further hearing of the case
on merits.
9. Learned Senior Counsel appearing for the petitioner would submit
that on 31.08.2023, the ED issued a summon knowing fully well that
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the petitioner is in Australia, yet they asked him to appear on
02.09.2023. The petitioner is a citizen of Vanuatu and the Australian
Authority detained him in immigration. The petitioner cannot appear
on 02.09.2023 before the ED and they again issued another summon
for his appearance on 04.09.2023. Thereafter, an application was
moved under Section 70 of CRPC on 04.09.2023 itself and the
learned Special Court has passed the order against the petitioner. He
would further submit that the PMLA prescribed a procedure that has
to be followed, if a person is not an accused and a person, who is an
accused. The PMLA is a complete Code and the provisions of
Criminal Procedure Code, 1973 does not apply and therefore the
whole proceedings are null and void.
He would further submit that on the basis of predicate offence,
the ED can lodge ECIR and proceed. The proceed from the predicate
offence become the proceeds of crime. If that proceeds of crime put
in the bank and turned the illegal money as legal, it is called 'Money
Laundering'. In the original FIRs, the petitioner was not shown as an
accused. The subject FIRs are run with respect to Mahadev Book
App, there are certain penal operators and persons who can play the
games. The allegation against the petitioner is that when the players
play that games, it is called 'gambling' and the proceeds emerged
from the gambling, it was the predicate offence. It is also alleged that
certain portion of the proceeds of crime is allegedly attributed to the
petitioner, which is called 'Money Laundering'.
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10. The ED can deal with the investigation with respect to money
laundering. They are entitled to request for issuance of summons
under Section 50 of PMLA-2002, which does not make a distinction
who is an accused and who is not an accused. When a person is
summoned under Section 50 of PMLA-2002, and if he does not
answer the summon, the consequence of his not answering the
summon, if he is not an accused, Section 60 of PMLA-2002 would
come into play and the consequence of his not answering the
summon, if he is an accused, Section 59 of PMLA-2002 would come
into play. If the consequence of non-compliance of summon is
provided under the PMLA-2002, the provisions of the Code of
Criminal Procedure would not be applicable, and therefore, the whole
proceedings are illegal. He would further submit that in every
proceeding under Sub-sections (2) and (3) of Section 50 of PMLA-
2002 are the judicial proceedings within the meaning of Section 193
of CRPC. The petitioner did not know as to in what capacity, he was
called. The summon under Section 50 of the PMLA-2002 can be
issued to any person to appear and give statement. Section 60 of the
PMLA-2002 provides that if any person willfully or maliciously giving
false information, he can be punished and penalty imposed upon
him. If the person to whom summon was issued, does not appear
willfully, the consequence was provided under Sub-section (3) and
(4) of Section 50 of PMLA-2002. Section 174 of the IPC provides that
whoever being legally bound to attend a person at a certain place
and time in obedience to a summon, notice, order or proclamation
from any public servant, legally competent, he shall be liable to be
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punished with imprisonment or with fine. Section 59 of PMLA-2002
provides that where a Special Court in relation to an offence under
Section 4 of the PMLA-2002 desires to issue a summon to an
accused, shall be served or executed at any place in any contracting
state, it shall send such summon or warrant in duplicate in such form,
to such Court, Judge or Magistrate through such Authorities, as the
Central Government may, by notification shall cause the same to be
executed and Section 63 of the PMLA-2002 deals with the summons
issued by the ED. He would further submit that the petitioner was not
in India and no summon can be issued to a person, who is not
located in India, because the jurisdiction of the Court is circumscribed
by the local police station. If the accused is outside of India, the
summon can go through the Ministry of External Affairs and will be
served through the Commission, where he is located and then only
the person, who is served with the summon have to abide to obey.
The petitioner, at the time when the summon was issued to him i.e.
on 01.09.2023 was at Australia, the ED was well within knowledge
that the petitioner cannot appear on 02.09.2023 and he was detained
by the Australian Immigration Authority and sent back to Dubai. Again
another summon was issued on 02.09.2023 and asked to appear on
04.09.2023, which is a pure mala fide exercise of powers.
11. The ED has filed its application under Section 70 of the CRPC, which
does not deal with the power to arrest. The summon can only be
issued by the Court under Section 59 of the PMLA-2002 and it can
be served upon the party concerned under the guidelines of the
Central Government. The application filed by the ED under Section
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70 of CRPC was not maintainable and no order can be passed on
the application filed by the ED.
12. He would further submit that the provisions of CRPC would apply in
so far as they are not inconsistent because the provision of PMLA-
2002 for non-compliance of summon of ED is provided under Section
63 of PMLA-2002. He would also argue on Sections 16, 17 to 22 and
Section 50 of PMLA-2002 by submitting that the power to search,
seizure and arrest are provided under the PMLA-2002 and it is a
complete Code. The summon issued under Section 50 by the ED
and its non-compliance/consequence is provided under Section 63 of
PMLA-2002. Under the CRPC, the ED cannot summon a person if he
is not in India. The petitioner is a citizen of another country Vanuatu.
There has to be a contracting state and there is no treaty between
Vanuatu and India. It is also submitted by him that the Courts in India
have jurisdiction over its citizen, but if he is outside India, by virtue of
the fact that the Courts in India have jurisdiction over that person,
they call through the treaty pursuant to the guidelines issued by the
Central Government, but the ED has not followed the procedures.
13. Learned counsel for the petitioner would submit that the notices
dated 01.09.2023 and 02.09.2023 were issued against the provisions
of Section 105(2) of CRPC and also the circular issued by the
Ministry of Home Affairs, Government of India dated 11.02.2009
(Annexure P-9). Section 105(2) of CRPC provides that if a person to
whom a summon/notice is required to be issued and the said person
is in a contracting state than the investigating agency is required to
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approach the Court and after recording satisfaction that there are
sufficient ground to issue summons against that person who is in a
contracting state, shall issue summons in such form as the Central
Government may specify on this behalf. The petitioner is a resident
of Dubai and the summons dated 01.09.2023 and 02.09.2023 could
not be directly issued to him nor could it be served in India. Service
of summons by affixing in the address does not serve the purpose
who is residing in a contracting state. He would further submit that
UAE is a contracting State with India for the purpose of Section 105
of CRPC. As per the circular dated 11.02.2009, issued by the MHA,
the procedure prescribed in Para 3 in the said circular is applicable,
but the same has been issued in gross violation of the provisions of
Section 105 of CRPC which are void ab initio.
14. It is also the submission of the learned Senior Counsel that the
Special Court has failed to ascertain the manner in which the
summon under Section 50 of PMLA-2002 was issued by the ED.
Despite having knowledge that the petitioner is not in India, pasted
the summon on the premises of the petitioner in India. He would
submit that in the application filed by the respondent/ED under
Section 70 of the Code of Criminal Procedure, 1973 read with
Section 65 of PMLA-2002, the respondent/ED in Para 8 itself shows
that the petitioner has obtained the passport of Vanuatu, then they
have to proceed in accordance with the applicable laws. Articles 5, 6
and 8 of the Constitution of India provide the circumstances in which
a person can obtain Indian citizenship and as per Article 9 of the
Constitution of India if the person has voluntarily acquired the
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citizenship of any foreign country, no person shall be a citizen of
India. Thus, the petitioner is not an Indian citizen by virtue of Articles
5, 6 & 8 of the Constitution of India after obtaining the citizenship of
Vanuatu. Since the ED himself has stated that the petitioner has
obtained citizenship of Vanuatu, his Indian citizenship has been
seized. Similar is the provision under the Citizenship Act, 1955. He
would rely upon the judgment passed by Hon'ble Supreme Court in
the matter of State of Jharkhand and Others v. Ambay Cements
and Another, 2005 (1) SCC 368 and submits that if something is
already prescribed, it to do in a particular manner, then it has to be
done in a particular manner or it is not at all to be done and not in
any other way. Learned counsel for the petitioner has also relied
upon the judgment of Hon'ble Supreme Court in the matter of Opto
Circuit India Ltd. v. Axis Bank, 2021 (6) SCC 707. He would also
submit that even if assuming for a moment that CRPC is applicable
in the case, Section 105(A)(a) contains with the definition of
Contracting State. Sub-section (c) of Section 105(A) defines the
proceeds of crime. When this provision was added in the year 1994,
the PMLA Act, 2002 was not came into force, and as soon as the
provisions came, the applicability of Chapter 'VI' goes and Section
105(B)(2) of CRPC will apply in the case and the procedure
prescribed therein has to be followed.
15. The first summon was issued on 01.09.2023 and the second
summon was issued on 02.09.2023 and he asked to appear on
04.09.2023. The learned Special Court has also failed to consider
that before issuance of non-bailable warrant against the petitioner,
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they can issue a warrant of any other nature that too only after taking
cognizance of the case. The petitioner was not arrayed as accused in
any of the predicate offences mentioned in the complaint case before
the Special Court, the respondent/ED exercised its jurisdiction on
presumption and suspicion in the absence of any concrete material
against the petitioner.
16. In support of his submissions, he would rely upon the order passed
by the Gujarat High Court in "Prithviraj Saremal Kothari v. P.S.
Sriniwas" LNIND 2015 Gujarat, 3292, "Indermohan Goswami v.
State of Uttaranchal" 2007 12 SCC 1.
17. Learned counsel for the petitioner further submit that the learned
Special Court has erred in observing that the petitioner is not
cooperating with the investigation, ignoring the fact that the manner
in which the summon is said to have been served upon him,
particularly when he was detained by Australian Immigration and the
procedure adopted by ED for obtaining non-bailable warrant against
the petitioner, is illegal. The learned Special Judge has failed to
consider that to record the reasons for arrest is mandatory as
required under Section 19 of PMLA-2002 and relying upon the
judgment passed by the Hon'ble Supreme Court in the matter of
Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Satender
Kumar Antil v. CBI, (2022) 10 SCC 51 would submit that to effect an
arrest, an officer authorized has to assess and evaluate the material
in his possession and if the material in his possession giving rise to
the reason to believe that any person has been guilty of an offence
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under the PMLA-2002, he may arrest such person. The petitioner is
neither a fugitive nor a proclaimed offender and is willing to
cooperate with the respondent/ED. The petitioner is the resident of
UAE since last 03 years. While carrying out of service of summons
under Section 50 of PMLA-2002, dated 01.09.2023 and 02.09.2023
by affixing the same on the Indian Residence of the petitioner, did not
adhere to the Ministry of Home Affairs (in short MHA) guidelines, with
respect to service of summons, notices or judicial process on
individual, who resided abroad. As per the said guideline, the MHA,
on receipt of request will examine in view of the provisions of treaty, if
exists, with the requested country in case of non-treaty country. He
would also submit that the service of non-bailable warrant amounts to
extradition and thus the respondent/ED has failed to properly serve
the summons upon the petitioner in an effective manner.
18. The summon dated 13.11.2023, which was served through e-mail
upon the petitioner had duly replied through e-mail dated 17.11.2023,
by which it has been replied that the petitioner is living at UAE and
there is no service of summon to the petitioner, despite that the
respondent/ED has proceeded by filing its application before learned
Special Court for issuance of non-bailable warrant against the
petitioner. Further, relying upon the judgment passed by the Hon'ble
Supreme Court in the matter of "Pankaj Bansal v. Union of India
and others" 2023 SCC Online SC 1244 has submitted that being a
premier investigating agency, charged with the responsibility of
curbing the economic offence of money laundering in the country,
every action of ED in the course of such exercise is expected to be
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transparent and fair play in action, which is missing in the present
case. Lastly, he would submit that the power must be exercised
reasonably and in good faith means for legitimate reasons, but in the
present case, it reflects that the action of the respondent/ED is a
colourable exercise of powers, which vitiates the entire proceedings.
The Special Court cannot assist the investigating agency by issuing
non-bailable warrant prior to taking cognizance of the matter. There
is no substantive and incriminating material available in the case,
which directly implicates the petitioner as an accused in the present
case. Therefore, the issuance of non-bailable warrant against the
petitioner is unjustified and the impugned order is liable to be set
aside.
19. Per contra, learned counsel for the respondent-ED has filed their
reply and argued in the same line as per their reply and has
submitted that an ECIR bearing No. RPZO/10/2022 was recorded
against Mahadev Online Book and others and started an
investigation under the provisions of PMLA, 2002 on the basis of the
charge sheet bearing No. 157 of 2002, dated 29.07.2022 filed by the
Police Station Mohan Nagar, Durg against Alok Singh Rajput, Ram
Pravesh Sahu, Kharag @ Raja Singh and others. The said charge
sheet was filed under Sections 120-B and 420 of IPC for being
involved in online betting in live Ludo, Football, Casino Games and
Marks through Mahadev Book. As per the charge sheet filed by the
State Police, the raid was conducted based on secret information
and the aforesaid three accused persons were arrested with a set-up
of Laptops, by which they collected money by creating an online ID
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and then with this money put bets for others through Mahadev Online
Books on online Cricket match, Horse racing, Greyhound racing and
Kabaddi etc. Upon interrogation, they disclosed the names of
Abhishek and Pintu, who taught them about the making of online IDs
and placing bets in Cricket matches and other sports through online
banking. The Laptops, Mobile phones, Passbooks of various banks,
Debit-Credit cards, SIM cards, cheque books and cash were seized
from their premises, which gave rise to the recording of the ECIR
under the PMLA, 2002. Various FIRs have been registered
throughout the country for illegal online betting through Mahadev
Book and one of the FIRs, bearing No. 206 of 2023 was registered
by Police Station Cybercrime Vishakhapatnam Commissionerate,
Andhra Pradesh on 02.06.2023 for the offence under Sections 419,
420, 467, 468, 471, 120 read with Section 34 of IPC and Sections
66-C, 66-D of Information Technology Act, 2000 and Sections 3 and
4 of Andhra Pradesh Gambling Act. As per the information of Andhra
Pradesh Police, 21 persons were found running call centres for the
operation of the Mahadev App and they collected money from the
pouters, who intended to put the bets and deposited the money in the
Bank accounts shared through WhatsApp groups. These persons
have put their bets as per their choice of Online Gaming App. The
money made through the App was transferred to different accounts,
till it was siphoned off to the person named Sourabh Chandrakar,
who lives in Dubai. The government had blocked the illegal betting
website Mahadev Book. The other persons, who also resided in
Dubai and are known to operate the illegal betting app along with
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Sourabh Chandrakar. Several cases relating to fraud and illegal
activities are filed against them. He would submit that when various
FIRs have been registered against individuals for being involved in
illegal betting operations through the Mahadev Book App and Reddy
Anna App, which also contained the scheduled offences as defined
under PMLA, 2002. An addendum dated 02.09.2023 to the ECIR was
also made in which the FIRs have also been included in the ECIR of
RPZO/10/2022.
20. During the course of the investigation, it was gathered that the
present applicant had also invested in the betting website "Sky
Exchange" and Harishankar Tibrewal was the co-owner and operated
the "Sky Exchange" website. Harishankar Tibrewal had laundered
these proceeds of crime using multiple companies operating both in
India and outside India. The operations of the Indian companies were
managed by the present applicant. It also revealed that the present
applicant had full knowledge of the origin of the proceeds of the
crime and yet he participated in this money laundering. The present
petitioner has acted as the Shareholder and Director in various
entities employed in the laundering of the proceeds of crime
originating from the betting operations.
21. The present petitioner hails from Bhilai in Chhattisgarh, where he
was running a juice shop till 2017. Suddenly, he remarkably risen in
the world of illegal gambling. He is the co-owner of online betting
platform Mahadev Online Book and he in association with Ravi Uppal
has established a betting empire and indulged in money laundering.
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The present petitioner and Ravi Uppal are the main beneficial owners
of Mahadev Online Book. They are running their Mahadev Online
Book through Massive Call Centres, where WhatsApp and telegram
closed groups are operated and Bainami bank accounts are used for
money transactions. They have created a huge network and keep
70% of the betting profit. They created a network in which without
coming to India they are able to run these panels and managed to
lure large number of penal seekers by vulgar display of their wealth.
The present petitioner had spent more than 200 Crores in cash in his
wedding held in Ras-al-Khaimah, UAE in February 2023. Private jets
and celebrities were hired for his marriage function. Wedding
planners, Dancers, Decorators, etc. were hired from Mumbai and
Hawala channels were used to make payments to them. He run the
Mahadev Online Book panel in Pan India Operation.
22. During the course of investigation, it was gathered that the present
petitioner has obtained passport of country Vanuatu (in Oceania) and
he is roaming freely using this passport. He also applied for
Australian Visa on the basis of his passport of Vanuatu and he has
not yet renounced his Indian citizenship and thus, he deliberately
evading the investigation under PMLA-2002. He was actively
involved in generating and layering the proceeds of crime and thus
committed the offence of money laundering as defined under Section
3, which is punishable under Section 4 of PMLA-2002.
He would further submit that the summon under Section 50 of
PMLA-2002 was duly issued and served upon the petitioner.
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Obtaining the citizenship of Vanuatu which is a small island nation,
which does not have any extradition treaty with India, made it amply
clear that the petitioner did not intend to join the investigation and,
therefore, an application for issuance of non-bailable warrant against
the petitioner was moved before the learned Special Court (PMLA)
Raipur. The Special Court has the power to issue non-bailable
warrant against the accused, where he failed to cooperate and
deliberately avoid the process of law. Relying upon the judgment
passed by the Delhi High Court in 'Ottaviio Quattrocchi v. CBI'
1998 SCC Online Delhi 519, he would submit that Section 73 of the
CRPC confers a power upon a Magistrate to issue a warrant and that
it can be exercised by him during the investigation also. During the
course of investigation, the Court can issue a warrant in exercise of
power thereunder to apprehend, inter alia, a person who is an
accused of a non-bailable offence and is evading arrest. He would
further rely upon the judgment of 'Mrigendra Jalan v. State and
another' 2008 SCC Online Delhi 1067 and State v. Dawood
Ibrahim Kaskar, 2000 (10) SCC 438, would submit that the Courts
are having jurisdiction and power to issue non-bailable warrant in aid
of investigation when the accused is not available for investigation
despite notice at his permanent address in a case of cognizable and
non-bailable offence. The person so summoned is bound to attend in
person and state truth on any subject concerning which he is being
examined are expected to make statement. Further relying upon the
order passed by Delhi High Court in Amanatullah Khan v.
Directorate of Enforcement, 2024 SCC Online Delhi 1658, he
20
would submit that the ED has the power to issue summon to any
person under Section 50 of PMLA-2002 and the person so
summoned is bound to attend in person or through authorized agent
and to state truth upon the subject concerning, which he is expected
to make statement and produced document as may be required by
virtue of Section 50(3) of the PMLA-2002.
23. The issuance of non-bailable warrant against the petitioner was
requested only to ensure the petitioner's presence in the
investigation. Section 19 of the PMLA-2002 was not invoked and
therefore, there is no requirement of recording of reasons to believe
or putting up material before the learned Special Court. When the
application was filed before the learned Special Court, after going
through the entire record of the case, they issued the non-bailable
warrant against the petitioner by observing that the petitioner is
evading his presence before the ED. He would further submit that the
service of summons can be executed through the Ministry of Home
Affairs if the same was to be executed at a foreign address or any
other contact details of the petitioner, but in the present case, the
summons has been served upon the petitioner in his Indian address.
Section 65(1) of the CRPC allows for service of summons by affixing
it to a house in India in cases where the person who is summoned
resides outside India.
He would submit that Articles 21 and 22 of the Constitution of
India designed to give a protection against the act of an executive or
other non-judicial authority. In Indian law, there are two types of
21
arrest, one is under a warrant of a Court under Sections 70 and 73 of
the CRPC, and other is under Section 19 of the PMLA. When arrest
has been made under a warrant of a Court, even the claim of a
fundamental right under Articles 21 and 22 has been held to be not
applied. The ED is invoked the execution of warrant of arrest by
placing all materials before the Special Court for securing his
presence. The ED may or may not exercise its powers under Section
19 of PMLA-2002, and it is to secure their presence in the
investigation.
24. It is further submitted that the summons under Section 50 of PMLA-
2002 was duly issued to the petitioner. The petitioner was not
intended to join the investigation as he has obtained citizenship of a
small island Vanuatu, which does not have any extradition treaty with
India and therefore, the application for non-bailable warrant was filed
before the Special Court (PMLA) considering the prima facie material
against the petitioner involved in money laundering activities through
Mahadev Online Book.
25. Learned counsel for the respondent/ED raised a preliminary
objection in the present petition that the present petition has been
filed, swearing the affidavit by the power of attorney holder of the
petitioner, namely Khemraj Sinha. When the petition for cancellation
of non-bailable warrant issued against the petitioner is not supported
by an affidavit by the petitioner himself, the same is not maintainable
and liable to be dismissed without entering into the merits of the
case. He would rely upon the judgment passed by the Delhi High
22
Court in Amrinder Singh @ Raja v. State of NCT of Delhi, reported
in 2022 SCC Online Delhi 24, Amit Ahuja v. Gian Prakash
Bhambri, reported in 2010 SCC Online P&H 4856 and T.C. Mathai
and another v. District and Sessions Judge,
Thiruvananthapuram, 1999 (3) SCC 614. The petitioner has
challenged the issuance of non-bailable warrant against him through
his power of attorney. The power of attorney is not competent to
swear affidavit on behalf of the principle with respect to the fact,
which was within the knowledge of the principle. The affidavit itself is
faulty, which is against the procedure prescribed in Order 19 Rule 3
of Code of Civil Procedure, 1908. The affidavit shall be confined to
such fact as the deponent is having his own knowledge to prove. In
the present case, a number of facts, which the deponent was not
having his own knowledge and such affidavit is liable to be ignored.
26. Another objection raised by the respondent/ED is that the warrant
issued against the petitioner cannot be canceled in absentia. The
person against whom the warrant has been issued has to present
himself before the Court for the warrant to be canceled, and then
only the petition can be entertained. At the very outset, an
option/proposal was given to the petitioner that he may join the
investigation and till then, the warrant may not be executed against
him, but he denied the same. Denial of the petitioner itself shows that
he is not willing to join the investigation/trial and does not want to
come India. It has been held in the case of 'Ashok Malik v. M/s.
Soga Impex Pvt. Ltd. and another' 2012 SCC Online Delhi 3464
that warrant cannot be canceled in absentia.
23
27. He would also submit that in non-cognizable offences, the police
have to seek permission from the Court, but in cognizable offences,
the police have their own independent power. Section 65 of the
PMLA-2002 says that the provisions of the Code of Criminal
Procedure will apply unless there is anything inconsistent in PMLA-
2002. The power under Section 73 of the CRPC coupled with duty
given to the agency to approach the Court and have a non-bailable
warrant issued in aid of investigation and arrest is an inherent part of
investigation. At this juncture, he would rely upon the judgment of P.
Chidambaram v. Directorate of Enforcement, 2019(9) SCC 24.
Section 2(na) of the PMLA-2002 defines the investigation. Section
63(2) of the PMLA-2002 prescribed the penalty for non-compliance
with the provisions of Section 50 of PMLA-2002, which provides a
fine of Rs. 500/-, which may extend to Rs. 10,000/-. He would also
submit that the petitioner had approached the Delhi High Court
against issuance of red-corner notice, but the same has not been
disclosed in the present petition, in which he is claiming for setting
aside the non-bailable warrant issued against him. The petitioner has
withdrawn his petition filed before the Delhi High Court on
23.07.2024. He would rely upon the judgment passed by the Hon'ble
Supreme Court in the matter of State v. Dawood Ibrahim Kaskar,
2000(10) SCC 438.
He would further submit that the petitioner cannot evading to
answer the summons issued under Section 50 of PMLA-2002. All
persons shall be bound to attend and to answer the summons. It
cannot be at the choice of summoned person or violative of Article 20
24
of the Constitution of India. He would rely the judgment passed by
Hon'ble Supreme Court in the matter of Directorate of Enforcement
v. State of Tamil Nadu and others, reported in 2024 SCC Online
SC 211.
28. It is also submitted that the present petition is legally not
maintainable since it is a settled position of law that the accused
should be present in person before the Court concerned for
cancellation of the non-bailable warrant, for which he relied upon the
judgment of 'Ashok Malik v. M/s. Soga Impex Pvt. Ltd. and
another' 2012 SCC Online Delhi 3464. He would also submit that
when a person is summoned under Section 50 of PMLA-2002, the
person concerned is bound to appear and to make a statement. As
per the case of 'Vijay Madanlal Choudhary and others v. Union of
India' 2022 SCC Online SC 929, the petitioner does not assume the
character of an accused.
29. Section 50 of PMLA-2002 provides that the ED is statutorily
empowered to summon "any person" and it is the duty of such
person to attend the same. Since the petitioner failed to appear
before the ED, an application was moved by the ED requested only
to ensure the petitioner's presence in investigation. Since the
provisions of Section 19 of PMLA-2002 was not invoked, there was
no requirement of recording of reasons to believe or to produce the
material before the Special Court. After considering the entire
material produced before the learned Special Court and also under
the facts and circumstances of the case, passed its order on
25
04.09.2023 and issued a non-bailable warrant against the petitioner.
Since the ED did not have the foreign address or any contact details
of the petitioner, he served the summons in accordance with the law
at his last known address in India. Section 65(1) of the PMLA-2002 is
applicable where the person to be summoned resides outside India
and allows for service through the Indian Embassy or by affixing the
summons to a house in India.
30. It is further submitted that in the present petition, the petitioner
himself has not sworn the affidavit in support of the petition and the
same has been sworn by their power of attorney, and therefore the
petition is not maintainable as the power of attorney came to execute
affidavit only with respect to his own personal knowledge on behalf of
the principle, but he cannot swear affidavit on behalf of the principle
which is not in his personal knowledge.
31. He would further submit that despite giving an option to the petitioner
that he may appear before the learned Special Court and apply for
cancellation of non-bailable warrant and till then, the ED will not
arrest the petitioner, but they denied the said proposal, which itself
shows that he did not intend to join and not to cooperate with the
investigation. Therefore, the non-bailable warrant issued by the
learned Special Court is well within jurisdiction, which has rightly
been exercised by the learned Special Court and there is no illegality
in it. Hence the petition is liable to be dismissed.
26
32. In rejoinder, learned counsel for the petitioner would submit that
Section 70 of the Code of Criminal Procedure gives the procedure
and Section 73 is power to arrest. The ED had filed his application
under Section 70 of the CRPC and there is no conflict in Section 65
of the PMLA and Section 73 of the CRPC as Section 65 itself says
that there is no conflict if the ED wants to go for a warrant, the Code
will apply. The nature of search and seizure is different in the Code,
and if there is a conflict, then that chapter would apply. Whether it is
only a summon or warrant of arrest, it can only summon a person
within the jurisdiction of the concerned prosecution agency. In the
present case, the summon as well as the warrant of arrest, is not
applicable to the petitioner because he was not within the local
jurisdiction of the concerned agency. The petitioner challenged the
warrant of arrest, the issuance of summons itself is mala fide in view
of the fact that despite knowing the fact that the petitioner is detained
by Australian immigration, the summon was issued to appear on
01.09.2023 then 02.09.2023 and directed to appear on 04.09.2023.
The action of the respondent/ED comes under Section 73 of the
CRPC. He would further submit that the judgment of Amit Ahuja v.
Gian Prakash Bhambri is overruled in Mangal Dass Gautam v.
State of Haryana, 2018 SCC Online P&H 8136 (Para 41). In Amit
Ahuja's case has been said to be incorrect position of law and
therefore the petitioner can file a petition through his power of
attorney. In the criminal proceeding, the affidavit is not required to be
filed along with the petition. In another judgment, in Shankar
Finance v. State of Andhra Pradesh, 2008(8) SCC 536 (Para 12,
27
15) because he is not affirming any facts, but he is challenging the
issuance of warrant of arrest. The T.C. Mathai's case (supra) is not
applicable in the present case, as in T.C. Mathai's case the power of
attorney holder himself was the petitioner, but in the present case, it
is not the situation. The present petition has been filed by the
petitioner and in support of the petition, an affidavit has been sworn
by his power of attorney holder.
33. I have heard learned counsel for the parties and perused the material
annexed with the petition by the parties.
34. The respondent/ED has raised a preliminary objection regarding
maintainability of the present petition on the ground that the petition
has been filed through the power of attorney holder and the affidavit
sworn by the power of attorney of the petitioner, which is not
maintainable. In the present case, the petitioner is at Dubai who
executed a power of attorney in favour of Mr. Khemraj Sinha,
resident of Adivasi Colony, Kushalpur, Raipur (C.G.), who sworn an
affidavit on behalf of the petitioner in the present petition. The
respondent/ED has relied upon the judgment of Amrinder Singh @
Raja (supra) and in Para 7 and 8, it would rely upon the judgment of
Amit Ahuja (supra) and T.C. Mathai (supra). The consideration of
Amit Ahuja (supra) case has been overruled by the subsequent
decision of the Division Bench of Punjab and Haryana High Court in
the matter of Mangal Dass Gautam v. State of Haryana, 2018 SCC
Online P&H 8136 and in Para 41, it has been held that:
28
"41. The view taken in the case of Amit Ahuja's case
(supra) cannot be said to be correct for the reasons
detailed above. The questions in Reference are, thus,
answered as follows:-
1) Criminal proceedings under section 482 of
Cr.P.C. 1973 can be filed by an accused through
an Attorney but the circumstances under which
it can be so filed and would be maintainable
would be dependent upon various factors
including facts and circumstances of that
particular case, which is better left at the
wisdom and discretion of the Court.
ii) In the light of the answer to Question No. 1
mentioned above, Question No. 2 does not
survive to be answered as it was dependent
upon the answer of Question No. 1 and an
offshoot of the question in a particular
eventuality."
35. Since, the consideration of Amit Ahuja's case is overruled by the
Division Bench of Punjab and Haryana High Court, the ratio laid
down in Amit Ahuja's case cannot be taken into consideration.
However, in the said judgment of Amrinder Singh @ Raja's case
(supra) of Delhi High Court, the T.C. Mathai's case has been relied
upon and in Para 8 of the Amrinder Singh @ Raja's case (supra), it
has been considered that:
29
"8. In T.C. Mathai and another Vs. The District &
Sessions Judge, Thiruvananthapuram, Kerala, AIR
1999 SC 1385; in para 15, it is observed as under:-
"15. Section 2 of the Power of Attorney Act
cannot override the specific provision of a
statute which requires that a particular act
should be done by a party in person. When the
Code requires the appearance of an accused in a
court it is no compliance with it if a power of
attorney holder appears for him. It is a different
thing that a party can be permitted to appear
through counsel. Chapter XVI of the Code
empowers the Magistrate to issue summons or
warrant for the appearance of the accused.
Section 205 of the Code empowers the
Magistrate to dispense with "the personal
attendance of accused, and permit him to appear
by his pleader" if he sees reasons to do so.
Section 273 of the Code speaks of the powers of
the court to record evidence in the presence of
the pleader of the accused, in cases when
personal attendance of the accused is dispensed
with. But in no case can the appearance of the
accused be made through a power of attorney
holder. So the contention of the appellant based
on the instrument of power of attorney is of no
avail in this case.""
30
36. In T.C. Mathai's (supra), the ratio laid down in Para 15 of the
judgment has been relied upon in Amrinder Singh @ Raja's case
(supra) and in Para 16, it has been observed that:
"16. In this context reference can be made to a
decision rendered by a Full Bench of the Madras High
Court in M. Krishnammal v. T. Balasubramania Pillai
(AIR 1937 Madras 937), when a person, who was the
power of attorney holder of another, claimed right of
audience in the High Court on behalf of his principal.
A Single Judge referred three questions to be
considered by the Full Bench, of which the one which
is relevant here was whether an agent with the power
of attorney to appear and conduct judicial
proceedings has the ri court. Beasley, C.J., who
delivered the judgme nt on behalf of the Full Bench
stated the legal position thus:
"An agent with a power of attorney to appear
and conduct judicial proceedings, but who has
not been so authorised by the High Court, has
no right of audience on behalf of principal,
either in the appellate or original side of the
High Court There is no warrant whatever for
putting a power of attorney given to a
recognized agent to conduct proceedings in
court in the same category as a vakalat given to
a legal practitioner, though latter may be
described as a power of attorney which is
confined only to pleaders, i.e. those who have a
right to plead in courts.""
31
37. In T.C. Mathai's case, the appellant claims to be the power of
attorney holder of the couple, who were living at Kuwait and he
sought permission of the Sessions Court, Trivandrum to appear and
plead on behalf of the said couple, who are arrayed as respondent in
a criminal revision petition filed before the said Sessions Court and
the Sessions Judge declined to grant permission. Thereafter, the
appellant moved to the Kerala High Court under Article 226 of the
Constitution of India for issuance of a direction to the Sessions Court
to grant permission sought for. The Single Judge of High Court
dismissed the petition filed by the appellant and the writ appeal too
has been dismissed by the Division Bench of Kerala High Court and
thereafter the appellant approached before the Hon'ble Supreme
Court. In T.C. Mathai's case the issue was to whether the appellant
who was the power of attorney holder, can be considered to be a
pleader as defined in Section 2(q) of the CRPC and whether he could
be considered to be pleader under Section 303 of the CRPC. Here
the case is slight different that in the present case, the petitioner
executed a power of attorney in favour of Mr. Khemraj Sinha to sign,
verify, affirm and file plaints, applications, revisions, appeals,
affidavits, etc. or any other documents pertaining to the civil suits and
criminal proceedings for defamation as required before any Court in
India, who sworn affidavit in the present case, which has been filed
by the petitioner.
38. When Amit Ahuja's case has been overruled by the Division Bench
of Punjab and Haryana High Court, the considerations in T.C.
Mathai's case are different than the present case and the ratio laid
32
down in Amrinder Singh @ Raja's case (supra) is based on the
aforesaid two cases of Amit Ahuja and T.C. Mathai's case, the
benefit cannot be extended to the respondent/ED by holding that the
petition filed by the power of attorney holder of the petitioner, is not
maintainable.
39. There is nothing on record to show that the power of attorney of the
petitioner is disabled by filing affidavit in support of the petition or the
petition filed through power of attorney is not maintainable. The
preliminary objection regarding maintainability of the petition through
power of attorney holder is not sustainable and hereby rejected.
40. The second objection of the respondent/ED that the petition is not
maintainable in absentia, the respondent/ED has relied upon the
judgment of Ashok Malik v. M/s. Soga Impex Pvt. Ltd. and
another, 2012 SCC Online Delhi 3464. In Para 9, it has been held
that:
"9. First of all, warrants cannot be cancelled in
absentia. For this purpose, the accused has to appear
before the Court concerned. In addition to this, the
learned Metropolitan Magistrate, on the date when the
application under Section 70 (2) of Cr.P.C. was taken
up, that is on 27.4.2012, found that the counsel
representing the accused had not filed his
Vakalatanama and, therefore, he had no authority to
represent the accused and even the records shows
that even the surety was not available at the address
where he was supposed to be living. In such
33
circumstances, the Court had no other option but to
issue the proclamation against the accused."
41. In Ashok Malik's case (supra), it was the issue that an application
under Section 70(2) of CRPC was filed by the counsel representing
the accused, had not filed his Vakalatnama and therefore, the Delhi
High Court has held that the counsel had no authority to represent
the accused and even the surety was not available at the address,
where he was supposed to be living, but it is not the position in the
present case. In the present case, a power of attorney executed by
the petitioner, authorizing Mr. Khemraj Sinha to swear affidavit on his
behalf in support of the petition and in pursuance thereof, he
appointed his counsel and sworn the affidavit, therefore the facts and
the issue involved in the Ashok Malik's case is different than the
facts and issue of the present case and is not applicable.
42. When the ED found sufficient evidence against the petitioner that he
actively involved in the illegal operation of Mahadev Operation Book,
he issued the summons under Section 50 of the PMLA-2002 to the
address of the petitioner available with the ED and asked to appear
on 02.09.2023 and 04.09.2023. Since the petitioner did not join the
investigation, the ED apply under Section 70 of CRPC for issuance of
non-bailable warrant (open-ended) against the petitioner on
04.09.2023. The petitioner had obtained citizenship of a small island
nation Vanuatu, which does not have any extradition treaty or
arrangement with India, clearly evident that the petitioner did not
intend to join the investigation and therefore, the application for
34
issuance of non-bailable warrant was filed before the learned Special
Court. The learned Special Court has ample power to issue non-
bailable warrant against the accused when he failed to cooperate
and deliberately avoided the process of law. In the matter of Ottaviio
Quattrocchi (supra), the Delhi High Court in Para 44 has held that:
"46. In paras 21 to 24 of the report, the Apex Court
dealt with the extent of the power of Magistrate to
order issuance of non-bailable warrant of arrest of
accused/ during the course of investigation. The same
reads :
"21. That Section 73 confers a power upon a
Magistrate to issue a warrant and that it can be
exercised by him during investigation also, can
be best understood with reference to Section 155
of the Code. As already noticed under this
section a Police Officer can investigate into a
non cognizable case with the order of a
Magistrate and may exercise the same powers in
respect of the investigation which he may
exercise in a cognizable case, except that he
cannot arrest without warrant. If with the order of
a Magistrate the police starts investigation into a
cognizable and non-bailable offence, (like
Section 466 or 467 (Para I) of the Indian Penal
Code) and if during investigation the
Investigating Officer intends to arrest the person
accused of the offence he has to seek for and
obtain a warrant of arrest from the Magistrate. If
the accused evade the arrest, the only course
35
left open to the Investigating Officer to ensure
his presence would be to ask the Magistrate to
invoke his powers under Section 73 and
thereafter those relating to proclamation and
attachment. In such an eventuality, the
Magistrate can legitimately exercise his powers
under Section 73, for the person to be
apprehended is accused of a non-bailable
offence and is evading arrest.
22. Another factor which clearly indicates that
Section 73 of the Code gives a power to the
Magistrate to issue warrant of arrest and that too
during investigation is evident from the
provisions of part 'C' of Chapter VI of the Code,
which we have earlier adverted to. Needless to
say the provisions of proclamation and
attachment as envisaged therein is to compel
the appearance of a person who is evading
arrest. Now, the power of issuing a proclamation
under Section 82 (quoted earlier) can be
exercised by a Court only in respect of a person
'against whom a warrant has been issued by it'.
In other words, unless the Court issues a
warrant the provisions of Section 82, and the
other sections that follow in that part, cannot be
invoked in a situation where inspite of its best
efforts the police cannot arrest a person under
Section 41. Resultantly, if it has to take the
coercive measures for the apprehension of such
a person it has to approach the Court to issue
36
warrant of arrest under Section 73; and if need
be to invoke the provisions of part 'C of Chapter
VI. (Section 8(3) in case the person is accused of
an offence under TADA).
23. Lastly, we may refer to Section 90, which
appears in part 'D' of Chapter VI of the Code and
expressly states that the provisions contained in
the Chapter relating to summon and warrant, and
their issue, service and execution shall, so far as
may be, apply to every summons and every
warrants of arrest issued under the Code.
Therefore, when a Court issues a warrant of
arrest, say under Section 155 of the Code, any
steps that it may have to subsequently take
relating to that warrant of arrest can only be
under Chapter VI.
24. Now that we have found that Section 73 of
the Code is of general application and that in
course of the investigation a Court can issue a
warrant in exercise of power thereunder to
apprehend, inter alia, a person who is accused of
a non-bailable offence and is evading arrest we
need answer the related question as to whether
such issuance of warrant can be for his
production before the police in aid of
investigation. It cannot be gainsaid that a
Magistrate plays, not infrequently, a role during
investigation, in that, on the prayer of the
Investigating Agency he holds a test
identification parade, records the confession of
37
an accused or the statement of a witness, or
takes or witnesses the taking of specimen
handwritings etc. However, in performing such
or similar functions the Magistrate does not
exercise judicial discretion like while dealing
with an accused of a non-bailable offence who is
produced before him pursuant to a warrant of
arrest issued under Section 73. On such
production, the Court may either release him on
bail under Section 439 or authorise his detention
in custody (either police or judicial) under
Section 167 of the Code. Whether the Magistrate,
on being moved by the Investigating Agency, will
entertain its prayer for police custody will be at
his sole discretion which has to be judicially
exercised in accordance with Section 167(3) of
the Code. Since warrant is and can be issued for
appearance before the Court only and not before
the police and since authorisation for detention
in police custody is neither to be given as a
matter of course nor on the mere asking of the
police, but only after exercise of judicial
discretion based on materials placed before him,
Mr. Desai was not absolutely right in his
submission that warrant of arrest under Section
73 of the Code could be issued by the Courts
solely for the production of the accused before
the police in aid of investigation."
38
43. In the matter of Virbhadra Singh and another v. Directorate of
Enforcement and another, 2017 SCC Online Delhi 8930, in Para
143 the Delhi High Court has concluded that:
"143. .............The powers conferred on the
enforcement officers for purposes of complete and
effective investigation include the power to summon
and examine "any person". The law declares that
every such person who is summoned is bound to
state the truth. At the time of such investigative
process, the person summoned is not an accused.
Mere registration of ECIR does not make a person an
accused. He may eventually turn out to be an accused
upon being arrested or upon being prosecuted. No
person is entitled in law to evade the command of the
summons issued under Section 50 PMLA on the ground
that there is a possibility that he may be prosecuted in
the future. The law declared in Nandini Satpathy (supra)
concerning the statements under Section 161 Cr.P.C.
recorded by the police, and in other pronouncements
concerning similar powers of officers of the Customs
Department, as noted earlier, provide a complete
answer to the apprehensions that have been
expressed."
44. The ED is statutorily empowered to summon any person and it is the
consequent duty of such person to attend the same. In Vijay
Madanlal Choudhary's case (supra), the Hon'ble Supreme Court
has discussed the scope of Section 50 and power to issue summons
therein by the following observations:
39
"425. Indeed, sub-section (2) of Section 50 enables the
Director, Additional Director, Joint Director, Deputy
Director or Assistant Director to issue summon to any
person whose attendance he considers necessary for
giving evidence or to produce any records during the
course of any investigation or proceeding under this
Act. We have already highlighted the width of
expression "proceeding" in the earlier part of this
judgment and held that it applies to proceeding
before the Adjudicating Authority or the Special
Court, as the case may be. Nevertheless, sub-section
(2) empowers the authorised officials to issue
summon to any person. We fail to understand as to
how Article 20(3) would come into play in respect of
process of recording statement pursuant to such
summon which is only for the purpose of collecting
information or evidence in respect of proceeding
under this Act. Indeed, the person so summoned, is
bound to attend in person or through authorised
agent and to state truth upon any subject concerning
which he is being examined or is expected to make
statement and produce documents as may be
required by virtue of sub-section (3) of Section 50 of the
2002 Act. The criticism is essentially because of sub-
section (4) which provides that every proceeding
under sub-sections (2) and (3) shall be deemed to be
a judicial proceeding within the meaning of Sections 193
and 228 of the IPC. Even so, the fact remains that
Article 20(3) or for that matter Section 25 of the Evidence
Act, would come into play only when the person so
summoned is an accused of any offence at the
40
relevant time and is being compelled to be a witness
against himself. This position is well-established.
***
431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information 680 Supra at Footnote Nos.120 (also at Footnote No.41) 681 Supra at Footnote No.43 and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of 41 offence of money- laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence."
42
45. It is apparent from the reading of Section 50 of PMLA-2002 as well as the judgment of Vijay Madanlal Choudhary (supra) that the power conferred upon the ED by virtue of Section 50 of PMLA-2002 empowers them to summon any person whose attendance may be crucial either to give some evidence or to produce any record during the course of investigation or proceeding under the PMLA-2002. The persons, so summoned, are also bound to attend in person or through authorized agent and are required to state truth upon any subject concerning which such person is being examined or is expected to make statement and to produce document, as may be required in the case.
46. In the matter of Directorate of Enforcement v. State of Tamil Nadu (supra), the Hon'ble Supreme Court has explained the power to summon under Section 50 of PMLA-2002 and consequent duty of the person so summoned and to respond the same. In Para 5 & 6, the Hon'ble Supreme Court has held that:
"5. Sub-section (3) of Section 50 thereof being relevant, reads as under:-
"(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required."43
6. From the bare reading of the said provisions, it clearly transpires that the concerned officers as mentioned therein, have the power to summon any person whose attendance he considers necessary, either to give evidence or produce any record during the course of investigation or proceeding under the PMLA. Since, the petitioner - ED is conducting the inquiry/investigation under the PMLA, in connection with the four FIRS, namely (1) FIR No. 08 2018 dated 23.08.2018 registered by V&AC, Thanjavur, under Sections 120(B), 421, 409, 109 of IPC and Sections 13(1)(c), 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (P.C. Act) r/w 109 of IPC etc.; (II) FIR No. 03 2020 dated 20.10.2020 registered by V&AC, Dindigul under Sections 41, 109 of IPC and Section 7(a) of P.C. Act; (III) FIR No. 02 2022 dated 05.02.2022 registered by V&AC, Theni under Sections 7, 13(c), 13(1)(d)(1), 13(1)(a) r/w 13(2) and 12 of P.C. Act, Sections 120(B), 167, 379, 409, 465, 468, 471, 477 r/w 109 of IPC and Sections 7, 8(1), 13(1)(a) r/w 13(2) and 12 of PC Act, as amended; (IV) FIR No. 68/2023 dated 25.04.2023 registered by Murappanadu Police Station, Thoothukudi District, under Section 449, 332, 302 and 506(2) of IPC, and since some of the offences of the said FIRS are scheduled offences under PMLA, the same would be the investigation/proceeding under the PMLA, and the District Collectors or the persons to whom the summons are issued under Section 50(2) of the Act are obliged to respect and respond to the said summons."
44
47. The service of summons through the Ministry of Human Affairs, Government of India is executed, if the same is to be served at a foreign address. The ED did not have the foreign address or any other contact details of the petitioner and therefore, the summons was served in accordance with the Rules at the last known address of the petitioner in India.
48. Section 73 of the CRPC gives power to the Magistrate to issue warrant against an accused of a non-bailable offence, who is evading his arrest. The arrest of an accused is an interior part of investigation. It is necessary to reproduce Section 73 of CRPC hereinbelow:
"73. Warrant may be directed to any person.
(1) The Chief Judicial Magistrate or a Magistrate of the first class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person who is accused of a non-bailable offence and is evading arrest.
(2) Such person shall acknowledge in writing the receipt of the warrant, and shall execute it if the person for whose arrest it was issued, is in, or enters on, any land or other property under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate 45 having jurisdiction in the case, unless security is taken under section 71."
49. Para 22 of Dawood Ibrahim Kaskar's case is relevant here to support the powers of the Magistrate under Section 73 of the CRPC, which reads as under:
"22. Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of part `C' of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person `against whom a warrant has been issued by it'. In other words, unless the Court issues a warrant the provisions of Section 82, and the other Sections that follow in that part, cannot be invoked in a situation where inspite of its best effects the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section 73; and if need be to invoke the provisions of part `C' of Chapter VI. [Section 8 (3) in case the person is accused of an offence under TADA] "46
50. In Para 69 of the case of P Chidambaram v. Directorate of Enforcement (supra), the Hon'ble Supreme Court has considered that the arrest is a part of procedure of the investigation to secure not only the presence of the accused, but several other purposes. In Para 74 and 75, the Hon'ble Supreme Court has held that:
"72. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre- arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In State Rep. By The CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court held as under:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well 47 protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third- degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
73. Observing that the arrest is a part of the investigation intended to secure several purposes, in Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, it was held as under:-
"19. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect 48 witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the court in the process of investigation is limited. The court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code.""
51. It is well settled that the Courts must adopt that construction, which shall suppress the mischief and advance the remedy. From perusal of Section 105(A) in Chapter VII-A of the CRPC would make it clear that the provisions have been incorporated with the intention to curve mischief or completely eliminate terrorist activity and international crimes otherwise, there was no reason to have been enacted Chapter VII-A of the CRPC. The provisions of Chapter VII-A of the CRPC are in effect, supplemental to the other provisions of Section 166-A and 166-B of the CRPC and have nothing to do with investigation into general offences. The conjoint reading of the 49 definition of Section 105-A of CRPC, which includes "contracting state" and other provisions of Chapter VII-A of the CRPC would show that the same can be invoked only with respect to the offence within those two countries between whom reciprocal arrangements exit or treaties have been executed and not for those offences, which are committed within the territory of India. The provisions of Section 105- A can be invoked only when it pertains to two contracting states, which means that any country outside India on one hand on Indian territory on the other hand, if there exists a treaty between the two countries. The petitioner has obtained the citizenship of the other country, Vanuatu, with which there is no extradition treaty with India. The submissions made by learned counsel for the petitioner do not impress this Court to consider the same with the impugned order passed by the learned trial Court.
52. The Explanation (1) to Section 44 of the PMLA-2002 has also been considered in Vijay Madanlal Choudhary's case (supra) and in Para 368, it has been considered that:
"368. ...........As a matter of fact, this insertion is only a clarificatory provision, as is evident from the opening statement of the provision which says that "for the removal of doubts, it is clarified that". None of the clauses inserted by this amendment travel beyond the principal provision contained in Clause (d). Clause
(i) of the Explanation enunciates that the jurisdiction of the Special Court while dealing with the offence being tried under this Act, shall not be dependent upon any orders passed in respect of the scheduled 50 offence, and the trial of both sets of offences by the same Court shall not be construed as joint trials. This, in fact, is reiteration of the earlier part of the same section, which envisages that even though both the trials may proceed before the same Special Court, it must be tried separately as per the provisions of the 1973 Code."
53. In the present case, the investigation conducted by the State Police in FIR No. 206 of 2023 registered at Police Station Cyber Crime, Vishakhapatnam Commissionorate under the scheduled offences, which revealed that the money made via the app was transferred to different accounts till it was siphoned off to a person named Sourabh Chandrakar, a native of Chhattisgarh, who presently lives in Dubai. The government had blocked illegal betting website of Mahadev Online Book. Along with Sourabh Chandrakar, his other associates Ravi Uppal, Kapil Chelani, Satish Kumar and others also reside in Dubai and are known to operate about 60 illegal offshore gambling websites, such as Lotus-365, Fair play, Reddy Anna Book, Laser Book, Tiger exchange, Bet Book-247 and Gold-365, etc. The FIR was one of scheduled offences included in the ECIR recorded in respect of the petitioner. Statements of the close friends and associates of the petitioner were recorded under Section 50 of PMLA-2002 and they disclosed that the petitioner is one of the main promoters of Mahadev Online Book and this was further corroborated by the digital evidence gathered during investigation. Considering all these evidences, learned Special Court, on being application made by the ED, issued non-bailable warrant against the petitioner, and the 51 learned Special Court has rightly exercised its jurisdiction to issue said non-bailable warrant. It is settled law that the provisions of PMLA-2002 are not limited to the accused named in the criminal activity relating to the scheduled offence, but it would apply to any person if he is involved in any process or activities connected with the proceeds of crime and as per the investigation, the petitioner was found involved in possession of proceeds of crime, emanating out of the operation of Mahadev Online Book.
54. For the foregoing reasons, I do not find any ground to disagree with the order dated 04.09.2023, passed by the learned Special Court (PMLA-2002), by which the non-bailable warrant (open-ended) is issued against the petitioner and to interfere with the same.
55. In the result, the petition fails and is hereby dismissed.
Sd/-
(Ravindra Kumar Agrawal) Judge ved