24-Hour Arrest Clock Starts From Formal Arrest Under S. 19 PMLA, Not S. 50 Summons; 'Right to Sleep' Vital During Interrogation: Bombay HC

Bombay High Court Dismisses Petition Challenging PMLA Arrest Legality but Strongly Deprecates Overnight Interrogations

Mumbai: In a significant judgment, the Bombay High Court has clarified that the mandatory 24-hour period for producing an arrested person before a court under the Prevention of Money Laundering Act (PMLA) begins from the moment of formal arrest under Section 19, not from the time a person appears before the Directorate of Enforcement (ED) in response to a summons under Section 50.

While dismissing a petition challenging the arrest and remand of an individual, the court also issued strong observations against the ED's practice of conducting lengthy interrogations late into the night, emphasizing that the 'right to sleep' is a fundamental human right protected under Article 21 of the Constitution of India.

The petition was filed by Ram Kotumal Issrani , challenging his arrest on August 8, 2023, by the ED and the subsequent remand order issued by the Special PMLA Court in Mumbai.

Background of the Case

The petitioner had been issued summons under Section 50 of the PMLA and had appeared before the ED office in Delhi on August 7, 2023, at 10:30 am. This was his fourth appearance. According to the petitioner, his liberty was curtailed from the moment he arrived, with his phone seized and movements restricted. His statement recording reportedly began late at night, around 10:30 pm, and continued until approximately 3:30 am on August 8, 2023. He was formally arrested at 5:30 am on August 8, 2023, in Delhi, and thereafter flown to Mumbai, where he was produced before the Special PMLA Court at 5:00 pm the same day.

Petitioner's Arguments

The petitioner's counsel, Mr. Aggarwal , argued that the 24-hour clock for production before a Magistrate/Court should start from 10:30 am on August 7, 2023, when the petitioner's liberty was first curtailed at the ED office. Calculating from this time, he contended, the petitioner was not produced before the court within the stipulated 24 hours, making the arrest illegal, in violation of Article 22(2) of the Constitution.

It was also argued that the petitioner ought to have been produced before the 'nearest Magistrate' in Delhi before being taken to Mumbai, as per Article 22(3) and Section 167 of the Criminal Procedure Code (CrPC). Furthermore, the petitioner contended that the overnight interrogation, keeping a 64-year-old person awake for 20 hours despite medical issues, violated his fundamental 'right to sleep', which is part of the right to life under Article 21.

ED's Response

The learned Special Public Prosecutor for the ED, Mr. Venegavkar , countered that the 24-hour period commences only from the time of formal arrest under Section 19 of the PMLA, which occurred at 5:30 am on August 8, 2023. He submitted that the petitioner was produced before the Special PMLA Court in Mumbai at 5:00 pm the same day, well within 24 hours.

He argued that appearing under a Section 50 summons does not constitute detention or arrest, as Section 50 allows summoning 'any person', not necessarily an accused. The power to arrest an individual, Mr. Venegavkar submitted, arises under Section 19 only after the authority has 'reason to believe' they are guilty. Citing Supreme Court judgments in Vijay Madanlal Choudhary v Union of India and Vakamulla Chandrashekhar v Enforcement Directorate , he contended that the petitioner was not an accused until formally arrested.

Regarding the 'nearest Magistrate' point, he clarified that this provision in Section 167 CrPC applies when it's not possible to produce the arrestee before the jurisdictional Magistrate/Court within 24 hours, necessitating a transit remand. In this case, the Special PMLA Court in Mumbai was the jurisdictional court, and the petitioner was produced there within the legal timeframe, even excluding travel time from Delhi to Mumbai.

Court's Analysis and Findings

Justice Revati Mohite Dere , presiding over the matter, carefully considered the timelines and arguments. The court agreed with the ED's submission regarding the commencement of the 24-hour period. It held that attending the ED office pursuant to a Section 50 summons does not amount to being in custody or detention under Section 19 PMLA. A person becomes an accused under PMLA when formally arrested under Section 19 based on material providing 'reason to believe' they are guilty.

The court noted that from the formal arrest at 5:30 am on August 8, 2023, to production before the Special PMLA Court in Mumbai at 5:00 pm the same day, the total time was significantly less than 24 hours. Even considering the travel time from Delhi to Mumbai and excluding it as per legal provisions, the production was well within the limit.

On the 'nearest Magistrate' issue, the court reiterated that the purpose of this provision is for seeking transit remand when production before the jurisdictional court is not possible within 24 hours. Since the petitioner was produced before the jurisdictional Special PMLA Court in Mumbai within 24 hours, there was no requirement to first produce him before a Magistrate in Delhi.

Right to Sleep: A Key Observation

Despite dismissing the challenge to the arrest's legality, the court made strong observations regarding the overnight interrogation. Justice Dere expressed disapproval of the practice of recording statements under Section 50 PMLA late into the night, sometimes extending past midnight, even if the person summoned allegedly consents.

The court highlighted that a person summoned under Section 50 is not yet an accused and could be a witness or merely a person with relevant knowledge. Referring to the Supreme Court's observation in Ramlila Maidan Incident v Home Secretary, Union of India , where the court noted that "Sleep is essential for a human being... To disturb sleep, therefore, would amount to torture," the Bombay High Court underscored that the 'right to sleep' is a basic human requirement and a fundamental right under Article 21.

The court observed that recording statements at "unearthly hours" deprives a person of this basic right, potentially impairing their cognitive skills and health. It specifically noted the petitioner's age (64) and medical issues.

Decision and Implications

The Bombay High Court dismissed the petition, finding no illegality in the petitioner's arrest or production before the Special PMLA Court. However, the court's strong observations on the 'right to sleep' and overnight interrogations are significant.

The court directed the ED to issue a circular or directions laying down clear timings for recording statements when summons are issued under Section 50 of the PMLA, ensuring that statements are recorded during "earthly hours" and do not deprive individuals of their basic human right to sleep. The court scheduled a follow-up hearing on September 9, 2024, to ensure compliance with this direction.

This part of the judgment serves as a crucial reminder to investigative agencies about the human rights considerations that must be balanced with the demands of investigation, particularly when dealing with individuals who are not yet formally accused.