Punjab and Haryana High Court: In twin writ petitions challenging remand orders by the Trial Court and seeking release from judicial custody, Division Bench of Sureshwar Thakur* and Sudeepti Sharma, JJ. noted that the accused purportedly ‘accompanied by ED officials on 27-10-2023′ was illegal restraint by the officials of Directorate of Enforcement (‘ED’).
The petitioners got arrested and remanded to judicial custody vide order dated 28-10-2023. Therefore, the Court considered the question of whether their arrest was in terms of the provisions under Sections 17-A, 18(1) and Section 19(1) of Prevention of Money Laundering Act, 2002 (‘PMLA’). This led the Court to peruse the aforementioned provisions regarding search and seizure, search of persons and power to arrest.
The Court considered whether the formal arrest of petitioners on 28-10-2023 and supply of grounds/reasons for the accused becoming arrested was to be taken as relevant date, or 27-10-2023 for restraint caused, and whether any pervasive breach was caused in terms of Pankaj Bansal v. Union of India, 2023 SCC OnLine SC 1244. It further considered whether the restraint on 27-10-2023 was liable to be pronounced non est or illegal, making the challenged orders perfunctory and mechanically made, and whether the petitioners were therefore entitled to be released from judicial custody.
The Court analysed the submissions by both the parties and noted that the ASG had over focused upon drawing a semantic distinction inter-se arrest and custody, and also emphasized the manner of petitioners’ accompanying seized belonged to the ED officials were only in pursuance to the summons issued upon them. The attempts to submit that the purported restraint was not arrest but the date of drawing a formal arrest memo, was reckonable date for all relevant purposes. The Court refused to accept such submissions while relying upon judgment wherein it was candidly expressed that the date of causing unlawful restraint was reckonable date that the date of making formal/actual arrest of the accused.
The Court concluded from the fact that the accused accompanied the ED officials on 27-10-2023, be it in the seized car or one belonging to the officials, does tantamount to the accused being then unlawfully restrained and becomes the actual date when the accused persons were not informed the grounds of arrest or reasons to believe of having committed offences punishable under PMLA. The Court regarded the same as ‘pervasive breach caused to mandatory provisions’.
The Court further rejected the argument that accompanying accused persons in the said vehicles was in pursuance of summons issued upon them to ensure interrogation at the ED headquarters at Delhi due to the fact that accused accompanying ED officials would be construed as unlawful restraint and not as the accused voluntarily or willingly accompanying them. The Court expressed that “It appears that in the garb of the summons of 27.10.2023, the E.D. officials has attempted to give the otherwise unlawful restraint, thus the untenable colour of the accused voluntarily accompanying, the E.D. officials to the E.D. headquarters, located at Delhi.”
On submission that the accused were ‘coaxed’ to accompany ED officials, the Court concluded that the act was not in pursuance of purported summons issued but an unlawful restraint. Regarding Magistrate’s orders of remand allegedly condoning the said lapses, the Court refused to accept the said argument relying upon the Supreme Court’s observations in V. Senthil Balaji v. State, 2023 SCC OnLine SC 934 wherein it was held that the material suggested that the parameters relating to application of judicial mind by the Trial Court regarding relevant statutory breaches become infringed upon breach being caused to mandate of Section 19 of 2002 Act.
The Court therefore held the orders of remand as illegal, quashed and set aside the same in terms of verdicts in Pankaj Bansal (supra) and “Roop Bansal V. Union of India & Another” reported in Law Finder DOC ID: 2363538. The Court declared their arrest by ED in the instant matter to be non-est and void and ordered their release from judicial custody subject to several conditions.
[Pranav Gupta v. Union of India, 2023 SCC OnLine P&H 3598, decided on 7-12-2023]
Judgment by: Justice Sureshwar Thakur
Advocates who appeared in this case :
For Petitioner: Senior Advocate R.S. Rai, Senior Advocate Anand Chibbar, Advocate Surjeet Bhadu, Advocate Rubina Vermani, Advocate Shikar Sarin, Advocate Sanya Thakur, Advocate Veer Singh, Advocate Srishti Verma, Advocate Agam Bansal, Senior Advocate Puneet Bali, Advocate Vipul Joshi, Advocate Surjeet Bhadu, Advocate Veer Singh, Advocate Sanya Thakur, Advocate Prashant Kapila
For Respondents: Additional Solicitor General of India S. V. Raju, Senior Counsel for Union of India Arvind Moudgil, Special Counsel for ED Zoheb Hussain, Advocate Samrat Goswami, Advocate Deepanshu Gupta, Advocate Vivek Gurnani, Advocate Kartik Saherwal, Advocate Madhumita Keshvan, Advocate Manisha Dubey, Advocate Jyotika Panesar, Advocate Nisha Rawat, Advocate Bhawna Gandhi
