Bombay High Court: In a criminal writ petition, wherein the petitioner prayed for declaring the arrest to be illegal and to quash the order granting remand before the division bench of Revati Mohite Dere* and Manjusha Deshpande, JJ., the Court held that the petitioner was produced well within 24 hours of his arrest before the Special Court and hence, the arrest was legal. However, the Court also directed the Enforcement Directorate (ED) to issue a circular/directions as to the timings for recording of statements so that the practices of the ED do not violate the fundamental rights of the persons summoned.
Background:
In the matter at hand, the counsel for the petitioner submitted that his arrest and consequential remand were illegal and that he should be released since he was not produced before the Special Court within 24 hours of his arrest as mandated by law. Moreover, the petitioner was interrogated the whole night despite him being medically unfit and was not allowed to sleep which forms part of his fundamental right to life under Article 21 of the Constitution. He also submitted that the period of 24 hours from 07-08-2023 at 10:30 am, which was the time from when the petitioner was taken into custody by ED and his liberty was curtailed, expired on 08-08-2023 at 10:30 am, since he was not produced before the nearest magistrate even after excluding travel time. This was in violation of Article 22(2) of the Constitution. It was the counsel’s submission that the Special Judge failed to consider this scenario and allowed the remand application to keep the petitioner in custody till 10-08-2023 filed by the ED.
On the contrary, the Public Prosecutor submitted that the 24-hour period would have to be computed from 5:30 am on 08-08-2023 which was the time of arrest of the petitioner till he was produced before the Special Judge at 5 pm on the same day. He also submitted that since ED was interrogating two other co-accused in the said case, prior to recording of the statement of the petitioner, it cannot be said that the petitioner was detained from the time he arrived in the office. He relied on the term ‘investigation’ as defined under Section 2(1)(na) and Section 50 of the Prevention of Money Laundering Act (PMLA Act) and stated that the stage at which an individual is called pursuant to the summons under section 50, does not make him an accused. He stated that merely because he was asked to wait in the ED office does not mean that he was in custody. He placed his reliance on the judgement of Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929 and Vakamulla Chandrashekhar v. Enforcement Directorate, 2017 SCC OnLine Del. 12905.
Judgement:
The Court noted that the recording of the petitioner’s statement started at 10:30 pm and ended at 3:30 am, after which, he was arrested by the ED on 08-08-2023 at 5:30 am. The accused was then taken to Mumbai on a flight that landed at 12:15 pm and was produced before the Special Judge at about 5:00 pm. The Court also stated that in a case where the arrestee can safely be produced before the Judicial Magistrate within 24 hours, there is no necessity to take him first before the nearest Magistrate, and held that there was no merit in the allegations that the petitioner was not produced within 24 hours before the jurisdictional Court, and the arrest cannot be termed as ‘illegal’.
While dismissing the petition, the Court deprecated the manner in which the petitioner was kept overnight for the recording of the statement, whether voluntarily or otherwise, while depriving him of his right to sleep as guaranteed under Article 21 of the Constitution. The Court stated that the statements recorded under Section 50(2) of the PMLA are not statements recorded under Section 161 of the CrPC and are treated as evidence. It was also noted by the Court that ED officers are not police officers and the proceedings before them are judicial as evident from Section 50(4) of the Act and the judgement laid down in Vijay Madanlal Choudhary (Supra).
In furtherance of this, the Court stated that a person under Section 50 of PMLA should have his statement recorded during ‘earthly hours’ because the right to sleep is a basic human right and non-providing of the same may impair a person’s mental faculties, cognitive skills, and so on while relying upon Ramlila Maidan Incident v. Home Secretary, Union of India (2012) 5 SCC 1. The Court showed its disapproval of this practice as the petitioner could have been summoned the next day instead of keeping him waiting post mid-nigh and stated that the consent of petitioner in relation to this is immaterial.
Further, the Court directed the ED to issue a circular/directions, as to the timings, for recording of statements, when summons under Section 50 of the PMLA are issued having regard to what had been observed in this case.
[Ram Kotumal Issrani v. Directorate of Enforcement, 2024 SCC OnLine Bom 1050, Decided on 15-04-2024]
Advocates who appeared in this case:
For Petitioner- Advocate Vijay Aggarwal, Advocate Ayush Jindal, Advocate Yash Wardhan Tiwari, Advocate Yash Agarwal, Advocate Suyash Shanker, and Advocate Karan Lala
For Respondent- Advocate H.S. Venegavkar, Public Prosecutor, and Advocate Ayush Kedia
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