MEMORANDUM OF CRIMINAL ORIGINAL PETITION
(Under Section 482 read with Section 483 of Cr.P.C)
IN THE HON’BLE HIGH COURT OF JUDICATURE AT MADRAS
(CRIMINAL ORIGINAL JURISDICTION)
Crl.O.P. No. of 2024
Against
Crl.M.P. No. 19305 of 2024
[On the file of the Principal Sessions Judge, (Special Court under PMLA), At Chennai]
Jaffer Sadiq (M/A. 36 Yrs),
C/o. Abdul Rahman,
No. 1/2, Arulanandam Street, 3rd Floor,
Santhome, Mylapore,
Chennai – 600 004
-Vs-
…Petitioner/Accused
- The Assistant Director,
Directorate of Enforcement,
Chennai Zonal Unit -1,
5th & 6th Floor, BSNL Administrative
Building,
Kushkumar Road, Nungambakkam,
Chennai – 600 034
…1st Respondent/ Petitioner
- The Director General of Prisons,
…2nd Respondent
Office of The Director General of Prisons,
Prisons Head Quarter,
Near Lajwanti Garden Chowk,
Janak Puri, New Delhi - The Superintendent,
Jail No. 4, Tihar Central Jail,
Tihar Jail, Delhi, 110058
…3rd Respondent
PETITION U/s. 482 r/w. Sec. 483 OF THE CODE OF CRIMINAL
PROCEDURE, 1973
The Petitioner/ Accused submits as follows:
- The address for service of all the process and notice on the petitioners are that of their Counsel M/s. K.M. KALICHARAN, K.HEMANATHAN, S.P. SRI HARINI, S.ELANG SURIYAN, B.
CHANDRIKA, K.M. KALIDHARUN having office at No.40-42, TNHB Complex, Luz Golden Enclave, 180, Luz Church Road, Mylapore, Chennai – 600004.
The address for service of all the process and notices on the Respondent is as stated above. - The Petitioner states that he has been alleged to have committed the offence of Money Laundering defined U/s. 3 and punishable U/s. 4 of Prevention of Money Laundering Act, 2002.
The Petitioner herein is innocent of the said charges. - The Petitioner states that he was arrested by the Narcotics Control Bureau, Delhi Hqrs (herein after referred to as NCB) for alleged offences under section 9A, 25A, 29 of Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘NDPS Act’) on 09.03.2024. The NCB has filed Charge sheet and the same is numbered as S.C. 150 of 2024 on the file of the Special Judge, NDPS Act, Patiala House Court, New Delhi
(hereinafter referred to as ‘NDPS Court’). - It is submitted that brief facts of the predicate offence, under which the Petitioner was been detained is as follows:
The Special Investigation Team, Narcotics Control Bureau Headquarters, West Block -I, R.K. Puram, New Delhi conducted search of the premises situated in H-6, Kailash Park, Near Metro
Pillar No. 330, West Delhi – 110015 and seized 50.070 Kg of Psedoephedrine from 3 gunny bags having 18.250 KG, 15.070 KG, 16.750 KG Respectively. The said controlled substances were seized from Mukesh PU (Accused No.1), Mujeepur Rahman R (Accused No.2), Ashok Kumar (Accused No.3) who were
present at the premises during the search and based on the said search and seizure proceedings an FIR with Crime No. VIII/03/DZU/2024 under section 9A, 25A, 29 of NDPS Act. It is the case of the NCB that subsequent to search and seizure proceedings the said three persons in their confession statement given to the officer of NCB has stated that one Bezos is their Head and they had carried out operations on his instruction. It is also the case of NCB that in the Mobile recovered from of the 1st Accused, Mukesh PU, the Petitioner’s number was saved as Bezos and thereby the Petitioner was taken under the Judicial Custody vide order dated 09.03.2024 in Crime No. VIII/03/DZU/2024.
- The Petitioner states that since the offences U/s. 25A and 29
are Scheduled Offences under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA) the Respondent Department, Directorate of Enforcement, Chennai Zonal Unit-1, based on the FIR in Crime No. VIII/03/DZU/2024 registered ECIR/CEZO-1/09/2024. It is further submitted that the Respondent Department had preferred an application before the Special Judge, (NDPS Act), Patiala House Courts, New Delhi praying the Hon’ble Court to permit the Respondent Department to interrogate the Petitioner and other accused who have been remanded to judicial custody by the said Special Judge (NDPS
Act) and are currently detained in Tihar Jail No. 4. The learned Special Judge, (NDPS Act), Patiala House Courts, New Delhi vide his order 01.05.2024 permitted the Respondent Department to conduct enquiry and record statement of the Petitioner along with 4 other accused in related to the ECIR/CEZO-I/09/2024 from 08.05.2024 to 10.05.2024. - The Petitioner further submits that accordingly a team from the
Respondent Department headed by Mr. Sunil Yadav, Assistant Director, Chennai Zonal Unit-1, had interrogated the Petitioner and 4 other accused in Tihar Jail No.4. The Petitioner further submits that he has completely cooperated with the
investigation and has answered all the question which were put to him by the Respondent Department. It is further submitted that the Petitioner in no way connected to neither the predicate offence nor the offence under PMLA. It is also submitted that the allegation that the Petitioner’s number was saved as ‘Bezos’ in the mobile phone recovered from Mukesh PU is not true for the simple reason that the said number is neither owned by the Petitioner nor is registered under his name, the same is also observed by the learned NDPS Judge in the Petitioner’s Bail
Order dated 10.07.2024. - The Petitioner had moved an Application before the NDPS Court
seeking Assistance of Advocate during the Course of Investigation. The NDPS Court had granted Permission to interact with an Advocate only for a period of 15 mins from
02.00 PM to 02.30 PM. The Said order was received on
08.05.2024 around 03.00 PM and hence his Counsel was not able to meet the Petitioner on 08.05.2024. Further on the next day, his Counsel had gone to the Tihar Prison on 09.05.2024 at 02.00PM, but the Prison Superintendent, Jail no. 4, after due verification the prison authorities gave permission around 02.50 PM. Later, the Deputy Superintendent of Prison informed that the Petitioner was not enquired by the Respondent Police on
09.05.2024 and directed the counsel to come on 10.05.2024. - The Petitioner submits that the Respondent Department inorder to obtain statements, as required by them, from the Petitioner and other accused, had employed third degree treatment while interrogating one of the co-Accused, Shri
Sadhanandham who is 70 years of age and is suffering from High Blood Pressure, High Sugar, Cholesteral, Kidney Stone. Shri Sadhanandham was beaten black and blue by the officers of the Respondent Department in order to extract statement as required by them. Further Shri Sadhanamdham was admitted in ICU at Isabel Hospital, Chennai and was diagnosed blood clot in brain for which he is still under medication. Inspite of Severe Medical Complications suffered by Shri Sadhanandham, Assistant Director, Shri Sunil Kumar Yadav had followed
Crooked way to obtain forced confession statement to make out
a case which otherwise is not made out in the manner required by the respective laws. It is pertinent to note that Shri Sadhanandham has preferred an Application before the Special Court (NDPS) to take action against third degree treatment resorted by Shri Sunil Shankar Yadav during interrogation and the Special Court (NDPS) has called for a status report from Deen Dayalan Upadhyay Hospital, Hari Nagar and Hari Nagar Police Station, in which a Complaint has been registered against Shri Sunil Shankar Yadav for employing third degree treatment during interrogation. - The Petitioner is a Politically reputed person and has not involved in any similar offences. The Petitioner states that inorder to strengthen the case against the Petitioner and other accused the Respondent Department had tried to obtain forced confession from one among the Co-Accused (i.e) Shri Sadhanandam by employing third degree treatment. This
conduct of the officers of the Respondent Department clearly shows that the Respondent Department will resort to any method to strengthen their case with least regard to justice and laws in force. - The Petitioner further states that it is alleged in the grounds of arrest that there are statements of various persons which confirms his involvement in the predicate offences. In this regard it is pertinent to take note of the fact that one among such persons, Shri Irfan Malik, S/o. Zafirula Malik an associate of the Petitioner in film production, in his retraction letter dated
03.06.2024 sent to the Joint Director, Directorate of Enforcement, Chennai Zonal Unit-1, has stated that the
statement given by him to the ED authorities that an amount of Rs. 65.5 lakhs invested by him in movie production, belonged to Shri Jaffer Sadiq, was obtained under threat and coercion and thus he retracted the same. - The Petitioner states that once again the Respondent Department on 20.06.2024 filed an Application before the NDPS
Court seeking permission to interrogate the Petitioner and the NDPS Court had permitted the Respondent to interrogate the Petitioner on two days viz. 25.06.2024 and 26.06.2024. However, the Petitioner was interrogated only on 25.06.2024 and without being interrogated on the 26.06.2024, the Petitioner was arrested by the Respondent Department at
4:30PM on the same day. - The Petitioner states that even though he was arrested by the Respondent on 26.06.2024, the Respondent did not taken any steps to produce the Petitioner before the jurisdictional Court or any other Magistrate before lapse of 24 hours i.e., 4:30PM,
27.06.2024. - The Petitioner states that the Respondent approached the
Hon’ble Principal Sessions Judge (Special Court under PMLA), Chennai (hereinafter referred to as ‘PMLA Court’) and secured a Prisoner on Transit Warrant (hereinafter referred as P.T.
Warrant) on 28.06.2024. In the said P.T. Warrant the Hon’ble Principal Sessions Judge has directed that to produce the Petitioner before her on 02.07.2024 for the purpose of remand. Since the Respondent was unable to produce the Petitioner for remand on 02.07.2024, the Respondent once again approached the PMLA Court and applied for issuance of a fresh P.T. Warrant. The PMLA Court vide its order dated 03.07.2024 issued a fresh P.T. Warrant to produce the Petitioner on 15.07.2024. - The Petitioner submits that in the interregnum, the NDPS Court granted bail to the Petitioner on 10.07.2024 and after executing sureties, intimation for Petitioner’s released was sent by the NDPS Court to Tihar, Jail No. 4 on 11.07.2024. It is further submitted that after receiving the said intimation, the prison authorities refused to release the Petitioner and detained him on the strength of the P.T. Warrant that was issued by the PMLA Court. It is also submitted that when the NDPS Court was
informed about the Petitioner not being released inspite of its bail order, the NDPS Court called for an explanation from the prison authorities and to which the prison authorities sent a reply stating that the Petitioner is being held in order to be produced before the PMLA Court on 15.07.2024. - The Petitioner further submits that the said issue is no more res integra as this Court in State vs. K.N. Nehru reported in 2012(1) MWN (Cr.)4(DB) had categorically held that if an accused, against whom a P.T. Warrant is pending, is granted bail in respect of the prior offence, the P.T. Warrant should be sent back to the issuing Court with proper endorsement and the accused is to be set at liberty. In the said circumstances, the prison authorities in Tihar, Jail No. 4 not only refused to release the Petitioner even after he was granted bail, but also illegally produced him before the PMLA Court on 15.07.2024.
- The Petitioner further submits that on being produce illegally by the prison authorities on the strength of P.T. Warrant, the Respondent filed a Petition seeking remand of the Petitioner which was heard by the learned PMLA Judge. The Petitioner further submits that though the Petitioner’s Counsel vehemently opposed the Remand Petition on the ground that detention of the Petitioner on P.T. Warrant and his consequent production before the PMLA Judge is per se illegal as per the judicial precedents laid down by various High Courts as well as the Hon’ble Supreme Court. It is also submitted that after remanding the Petitioner the PMLA judge was pleased to grant the Respondent the Petitioner’s custody till 19.07.2024 vide order dated 16.07.2024, passed in Crl.M.P. No. 19304 of 2024 and further extended the same till 23.07.2024.
- The Petitioner submits that as he was not produced within 24 hours as contemplated U/s. 19(3) of PMLA which has made his arret illegal and even after being released on bail the Petitioner was illegally detained for 4 days on the strength of the P.T. Warrant issued the PMLA Court is gross violation of his Right to life and personal liberty guaranteed under Article 21 of the Constitution of India. The Petitioner further submits that under the said circumstances when he was illegally produced before
the learned PMLA Judge for remand, the learned PMLA Judge ought to have rejected the remand for the reasons stated above. However, the learned PMLA Judge without application of judicial mind and without giving proper reasons has remanded the Petitioner by way of passing a cryptic order which is bad in law. - The Petitioner submits that the omission on part of the Respondent Department has curtailed the Petitioners right
guaranteed by the laws of the land. Therefore, the Petitioner is constrained to invoke the inherent power of this Hon’ble Court by way of the instant Criminal Original Petition under the following among other
Grounds
A. The Remand order dated 16.07.2024 passed by the learned PMLA Judge is without application of mind and is as such bad in law.
B. The learned PMLA Judge failed to consider of the mandates and safeguards provided U/s. Section 19(3) of the Prevention
of Money Laundering Act, 2002 reads as follows:
“(3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a 1[Special Court or] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the 1[Special Court or] Magistrate’s Court.”
C. The learned PMLA Judge failed to consider that though the
Petitioner was formally arrested on 26.06.2024 at 4:30PM at Tihar Jail No. 4, he has not been produced before any Magistrate, let alone the Principal Sessions Court, Chennai which is the Special Court designated under PMLA.
D. The learned PMLA Judge erred in holding that the it is not necessary for the production of the Petitioner before the PMLA Court or the nearest Magistrate within 24 hours from the time of formal arrest as the Petitioner did not come into the physical custody of the respondent but continued to be in
judicial custody in connection with the case filed by the NCB.
E. That it can be seen from the above extract that Section 19(3) of PMLA only speaks about arrest and not custody unlike the language employed in Section 167 of Cr.P.C. and Article
22(2) of the Constitution of India. The inclusion of custody
under the said provisions means that the protection under such provisions are applicable only to regular arrest where the liberty of the accused is curtailed by way of physical detention. But the intention of the legislature is clear from the omission of the word ‘custody’ in Section 19(3) of PMLA that the safeguard under it is applicable every arrest including formal arrest.
F. The learned PMLA Judge failed to consider that the words
“Special Court” in Section 19(3) was inserted only in the year
2018, before which the section read as follows:
“(3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction”
G. From a reading the provision as it stood before 2018, it is coherent that every person arrested has to be taken to a Judicial or a Metropolitan Magistrate having jurisdiction. It is pertinent to note that only special courts designated under
Section 43 of PMLA has jurisdiction over the
investigation/trial of an offence under the Act and that from
a plain reading of Section 43 it can be seen that every special court will only be a Court of Sessions. While so, the words “be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction” could only mean the respective Magistrate having territorial
jurisdiction over the place in which an accused is arrested. It is also pertinent to note that the offence of money laundering is a subsequent offence before which there always is a predicate offence and there is a high chance that a person investigated under PMLA is already under judicial custody in respect of the predicate offence. Further, PMLA being a code in itself with all the necessary checks and balances, it is only logical to conclude that the legislature in order to protect the interest and rights of persons being arrested under PMLA have intentionally retained the words “be taken to a Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction”. Therefore, the concept of ‘formal arrest’ as contended by the Respondent does not arise in respect of offence under PMLA as there always is a predicate offence and every such arrest under PMLA would be a ‘formal arrest’. It is therefore submitted that Section 19(3) has been inserted by the legislature with the idea that every arrest under PMLA would be a ‘formal arrest’ and as such there should be certain safeguards in place in order to protect the rights of persons arrested under PMLA. It is therefore submitted that, applying the principles of ‘formal arrest’, that production before a Magistrate within 24 hours is not necessary, as held in K.N.
Nehru (supra) would only make the provision otiose.
H. The learned PMLA Judge failed to note that it is trite law that
the period of 60 days provided under Section 167(2) for statutory bail starts only from the date of pronouncement of remand order and not from the date of formal arrest of the Petitioner. Therefore, unnecessary delay on the part of the Respondent to produce the Petitioner before the Court of competent jurisdiction also affects the Petitioners right to statutory bail, wherein he is being illegally delayed from acquiring the same while the Respondent time for completing the investigation is being extended.
I. The learned PMLA Judge failed to note that the period of 15 days within which the Respondent Department can ask for custody of the Petitioner also starts from the date of remand order and not from the date of formal arrest. Hence the Respondent by abusing the due process of law is being benefitted while the Petitioner’s rights guaranteed under various laws of the land are being violated.
J. The learned PMLA Judge failed to note the difficulties faced by a person who is arrested and not produced before a Magistrate within 24 hours. The importance of such production has been addressed by the Hon’ble Apex Court in the case of Manoj vs. State of M.P. reported in (1999) 3 SCC 715. The relevant portion is extracted hereunder:
“12. If the police officer is forbidden from keeping an arrested person beyond twenty-four hours without order of a Magistrate, what should happen to the arrested person after the said period? It is a constitutional mandate that no person shall be deprived of his liberty except in accordance with the procedure established in law. Close to its heels the Constitution directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest. The only time permitted by Article 22 of the Constitution to be excluded from the said period of 24 hours is “the time necessary for going from the place of arrest to the court of the Magistrate”. Only under two contingencies can the said direction be obviated. One is when the person arrested is an “enemy alien”. Second is when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that “no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
- When the State of Madhya Pradesh, whose police made the arrest of the appellant in connection with the M.P. case on 7-8-1998, admitted that after the arrest he was not produced before the nearest Magistrate within 24 hours, its inevitable corollary is that detention made as a sequel to the arrest would become unlawful beyond the said period of 24 hours.
- Of course the stand of the State of Madhya Pradesh is that the appellant continues to be under detention pursuant to his arrest in the Rajasthan case. Excuses were advanced by the respondent-State for their inability to produce the accused before the nearest Magistrate within the required period. But no such excuse has been recognized by law. Hence the respondent cannot validly press for further detention of the accused beyond 24 hours. That arrest has now become otiose.”
K. That this Hon’ble Court in the case of M. Kishore vs. Inspector of Police reported in 2021 SCC Online Mad 113 addressed the issue of delay in producing the arrestee after executing a
formal arrest and held as follows:
“9. It is clear from the above judgments that where the investigating officer decides to arrest the accused person through a formal arrest, the accused person does not come into the physical custody of the police and for the purpose of calculating the period of 60 days or 90 days as contemplated under the proviso to Section 167(2) of Cr.P.C., it can be computed only from the date of detention as per the orders of the Magistrate and not from the date of formal arrest by the Police. A P.T. Warrant cannot be used for the purpose of keeping a person in detention without producing him before the concerned Court and uch non-production will certainly curtail the liberty of a person. If an accused person is produced before the Court with an inordinate delay and thereafter if he is remanded to judicial custody, the custody of the accused person in the concerned case will be calculated only from the date of his remand and the period prior to it where he was kept under detention on the strength of the P.T. warrant, will not be taken into consideration. Such a practice has been deprecated by this Court and such delay in producing the accused person before the Court after a formal arrest through a P.T. warrant, will certainly violate the liberty guaranteed under Article 21 of Constitution of India.
- In the present case, the respondent police did not produce the petitioner before the learned Magistrate, till the petitioner was enlarged on bail in all the other cases. That apart, the respondent also took advantage of this situation and filed a final report in both the cases and thereafter produced the petitioner before the concerned Magistrate and secured his judicial custody. It is therefore clear that the respondent police had indirectly achieved on the strength of a P.T. warrant, what they could not have achieved under the Code of Criminal Procedure. Such questionable practises by taking advantage of a P.T.warrant, continue to be adopted by the police. In the present case if the petitioner had been produced before the concerned Magistrate Court immediately after he was formally arrested by the respondent police and the petitioner had been remanded to Judicial Custody, the petitioner would not have lost the important right provided under the proviso to Section 167(2) of Cr.P.C. That apart, the petitioner would have also had the opportunity to apply for bail in these two cases also. The respondent Police by adopting a skewed practice have defeated the right of the petitioner and thereby the liberty of the petitioner was directly violated. This practice must be immediately stopped by the Police and even in case where a person is involved in serious offences, the correct procedure has to be adopted scrupulously. The procedure that has been provided under the Code of Criminal Procedure is common to both lighter offences and serious offences and hence irrespective of the nature of offence, the police is expected to follow the correct procedure failing which it will result in the violation of the fundamental right guaranteed under
Article 21 of the Constitution of India.”
L. That from the failure of the Respondent Department to secure a transit warrant it is coherent that the Respondent has arrested the Petitioner with ulterior motive, moreso when the Petitioner has completely cooperated with the interrogation having answered all and any questions put forth by the
Respondent Department.
M. That it is imperative to note that the Respondent Department had sought permission to interrogate the Petitioner over 5 days in two occasions i.e., 08.05.2024 – 10.05.2024 and 25.06.2024 – 26.06.2024. It is also
pertinent to note that out of the said 5 days the Department only chose to investigate the Petitioner on 2 days and did not consider it necessary to examine him during the remaining 3 days. However, the Respondent without conducting any interrogation till 4:30 PM on 26.06.2024 arrested the Petitioner on the ground that he is non-cooperative. The Petitioner is detained in judicial custody and has answered every question that were put to him. Therefore, in no way the Respondent can consider the Petitioner to be noncooperative when the issue is settled in Pankaj Bansal vs Union of India reported in 2023 SCC Online SC 1244. The relevant portion is extracted hereunder for immediate
reference:
“28. We may also note that the failure of the appellants to respond to the questions put to them by the ED would not be sufficient in itself for the Investigating Officer to opine that they were liable to be arrested under Section 19, as that provision specifically requires him to find reason to believe that they were guilty of an offence under the Act of 2002. Mere non-cooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/her liable to be arrested under Section 19. As per its replies, it is the claim of the ED that Pankaj Bansal was evasive in providing relevant information. It was however not brought out as to why Pankaj Bansal’s replies were categorized as ‘evasive’ and that record is not placed before us for verification. In any event, it is not open to the ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an ‘evasive reply’. In Santosh S/o Dwarkadas Fafatv. State of Maharashtra, this Court noted that custodial interrogation is not for the purpose of ‘confession’ as the right against self-incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not co-operating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them”.
N. While Remanding the Petitioner to judicial custody, the learned PMLA Judge failed to consider that the Petitioner was granted Bail on 10.07.2024 and that he brought before the
PMLA Court on 15.07.2024 after being illegally detained for
4 days on the strength of a P.T. Warrant issued by the PMLA Court. While the Counsel for the Petitioner had argued at length in regards to the Petitioner being detained illegally, the learned PMLA Judge did not address the argument but without reasoning has passed a cryptic order holding as follows:
“The P.T. warrant dated 2.7.2024 for the production of the accused was issued and directed to produce the accused before this court on 15.7.2024, while he was in judicial custody in connection with some other case. As such, the accused has been produced today. At this juncture, this court cannot decide the said contention that whether the accused was kept in illegal custody by the Jail Authorities or not in the case of NCB, New Delhi. Hence, the remand cannot be refused on those grounds”.
O. The above extract from the remand order clearly shows nonapplication of mind by the learned PMLA Judge while deciding upon the matter of remand. The learned Judge also failed to follow the dictum laid down in State vs. K.N. Nehru reported
in 2012(1)MWN(Cr.)4(DB) where in this Hon’ble Court had categorically held that when a person against whom a P.T. Warrant has been issued, has been released on bail in respect of the prior offence, he has to be released and the warrant has to be returned after making necessary endorsement. The
relevant portion is extracted hereunder:
“42. From the above discussions, the following conclusions emerge:
…
(7) Before the Accused is transmitted and produced before the Court in pursuance of a P.T. Warrant in connection with a latter case, if he has been ordered to be released in connection with the former case, the Jail Authority shall set him at liberty and return the P.T. Warrant to the Magistrate making necessary endorsement and if only the Accused continues to be in judicial custody, in connection with the former case, he can be transmitted in pursuance of P.T. Warrant in connection with the latter case.”
P. The learned PMLA Judge also failed to follow the dictum laid down in the case of M. Kishore vs. Inspector of Police reported in 2021 SCC Online Mad 113 wherein while granting Bail to the Accused detained on the strength of P.T. Warrant this Hon’ble Court observed as follows:
“9. It is clear from the above judgments that where the investigating officer decides to arrest the accused person through a formal arrest, the accused person does not come into the physical custody of the police and for the purpose of calculating the period of 60 days or 90 days as contemplated under the proviso to Section 167(2) of Cr.P.C., it can be computed only from the date of detention as per the orders of the Magistrate and not from the date of formal arrest by the Police. A P.T. Warrant cannot be used for the purpose of keeping a person in detention without producing him before the concerned Court and such non-production will certainly curtail the liberty of a person. If an accused person is produced before the Court with an inordinate delay and thereafter if he is remanded to judicial custody, the custody of the accused person in the concerned case will be calculated only from the date of his remand and the period prior to it where he was kept under detention on the strength of the P.T. warrant, will not be taken into consideration. Such a practice has been deprecated by this Court and such delay in producing the accused person before the Court after a formal arrest through a P.T. warrant, will certainly violate the liberty guaranteed under Article 21 of Constitution of India.
- In the present case, the respondent police did not produce the petitioner before the learned Magistrate, till the petitioner was enlarged on bail in all the other cases. That apart, the respondent also took advantage of this situation and filed a final report in both the cases and thereafter produced the petitioner before the concerned Magistrate and secured his judicial custody. It is therefore clear that the respondent police had indirectly achieved on the strength of a P.T. warrant, what they could not have achieved under the Code of Criminal Procedure. Such questionable practises by taking advantage of a P.T. warrant, continue to be adopted by the police. In the present case if the petitioner had been produced before the concerned Magistrate Court immediately after he was formally arrested by the respondent police and the petitioner had been remanded to Judicial Custody, the petitioner would not have lost the important right provided under the proviso to Section 167(2) of Cr.P.C. That apart, the petitioner would have also had the opportunity to apply for bail in these two cases also. The respondent Police by adopting a skewed practice have defeated the right of the petitioner and thereby the liberty of the petitioner was directly violated. This practice must be immediately stopped by the Police and even in case where a person is involved in serious offences, the correct procedure has to be adopted scrupulously. The procedure that has been provided under the Code of Criminal Procedure is common to both lighter offences and serious offences and hence irrespective of the nature of offence, the police is expected to follow the correct procedure failing which it will result in the violation of the fundamental right guaranteed under Article 21 of the Constitution of India”.
Q. It is therefore submitted that the learned PMLA Judge considering the illegality in arrest and production of the Petitioner, ought to have refused to remand the Petitioner. As such the non-application of mind on the part of the learned PMLA Judge has violated the fundamental rights guaranteed under Part III of the Constitution of India and the remand order is per se illegal and is ought to be set aside.
R. The Petitioner craves the leave of this Hon’ble Court to raise
additional grounds in the course of oral and written submissions made in the instant case.
- That it is trite law that when due process of law is being used for an ulterior or oblique purpose, the inherent power of this Hon’ble Court under Section 482 of the Criminal Procedure Code, 1973 can be invoked. The above dictum was laid down by the Hon’ble Supreme Court in the case of (i) S W Palanitkar vs.
State of Bihar reported in (2002) 1 SCC 24 and also in (ii) Arnab Manoranjan Goswami vs. State of Maharashtra reported in (2021) 2 SCC 427. The relevant portions of the said cases are
extracted hereunder:
(i) “… whereas while exercising power under Section 482 CrPC the High Court has to look at the object and purpose for which such power is conferred on it under the said provision. Exercise of inherent power is available to the High Court to give effect to any order under CrPC, or to prevent the ends of justice. This being the position, exercise of power under Section 482 CrPC should be consistent with the scope and ambit of the decisions aforementioned. In appropriate cases, to prevent judicial process from being an instrument of oppression or harassment in the hands of frustrated or vindictive litigants, exercise of inherent power is not only desirable but necessary also, so that the judicial forum of court may not be allowed to be utilized for any oblique motive.”
(ii) “… The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty.”
- The Petitioner submits that he is innocent of the charges as stated in the Chargesheet and the ECIR. The petitioner has been implicated in the alleged crime with ulterior motive. The Petitioner has no connection whatsoever with the alleged offences. The Petitioner has not gained any money through illegal means which could be termed as proceeds of crime, which is quintessential to make out an offence U/s. 3 of Prevention of
Money Laundering Act, 2002. - It is further submitted that once the remand becomes illegal,
the consequent proceedings of granting ED custody and recording of the Petitioner’s statement during such custody would also become illegal and hence the same should be excluded from the final Complaint which will be filed by the
Respondent U/s. 44 of the Prevention of Money Laundering Act,
It is prayed that this Hon’ble Court maybe pleased to stay the operation of remand order dated 15.07.2024 passed by the learned Principal Sessions Judge, (Special Court under PMLA), Chennai in Crl.M.P. No. 19305 of 2024 and all consequential proceedings thereto and order interim release of the Petitioner till the disposal of the instant Criminal Original Petition and pass such other or further orders as this Hon’ble Court deems fit and proper in the facts and
circumstances of the case and thus render justice.
It is prayed that this Hon’ble Court maybe pleased to set aside the
remand order dated 15.07.2024 passed by the learned Principal Sessions Judge, (Special Court under PMLA), Chennai in Crl.M.P. No. 19305 of 2024 declare the same as illegal and all consequential proceedings thereto and pass such other or further orders as this Hon’ble Court deems fit and proper in the facts and circumstances of the case and thus render justice.
Dated at Chennai this the day of July, 2024
COUNSEL FOR THE PETITIONER
IN THE HON’BLE HIGH COURT
OF JUDICATURE AT MADRAS
Crl.O.P. No. of 2024 Against
Crl.M.P. No. 19305 of 2024
Jaffer Sadiq
…Petitioner/Accused
-vs- Assistant Director,
Directorate of Enforcement
And 2 others
…Respondent
PETITION U/s. 482 read with
483 OF CRIMINAL PROCEDURE
CODE, 1973
K.M. KALICHARAN
(MS 2765/2019)
K. HEMANATHAN (MS 2778/2019)
S.P. SRI HARINI
(MS 2817/2019)
S. ELANG SURIYAN
(MS 5834/2021)
B. CHANDRIKA
(MS 6618.2021)
K.M. KALIDHARUN
(MS 4960/2023)
Counsel for the Petitionkcharanhc@gmail.com