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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
REVATI MOHITE DERE, GAURI GODSE, JJ.
Naresh Goyal, through his next of kin i.e. wife Anita Goyal - Petitioner
Versus
Directorate of Enforcement, Mumbai Zone II Office and Ors. – Respondents
Criminal Writ Petition No. 3162 Of 2023
Decided On : 07-11-2023
[HABEAS CORPUS] - [ILLEGAL DETENTION] - [ARTICLES 21, 22(1) OF THE CONSTITUTION OF INDIA; SECTION 19 OF THE PREVENTION OF MONEY LAUNDERING ACT, 2002] - [The court discussed the maintainability of a writ of habeas corpus, emphasizing that such a writ can only be issued when the detention is illegal. It highlighted the importance of compliance with statutory provisions, particularly Section 19 of the PMLA, which mandates the production of an arrested person before a magistrate within 24 hours. The court interpreted that if a person is in judicial custody due to valid remand orders, a habeas corpus petition cannot be entertained. The court concluded that the petitioner’s detention was lawful, as the remand orders were not mechanical and complied with legal requirements.]
Fact of the Case:
The petitioner sought a writ of habeas corpus, claiming unlawful detention by the Enforcement Directorate under the PMLA. He argued that he was not provided with the grounds of arrest, was detained beyond 24 hours, and that the remand orders were issued without proper application of mind.
Finding of the Court:
The court found that the petition for habeas corpus was not maintainable as the petitioner was in judicial custody due to valid remand orders. It ruled that the grounds of arrest were served to the petitioner, who acknowledged receipt, and that the remand orders were not mechanical but reasoned and lawful.
Issues: Whether the petition for a writ of habeas corpus was maintainable given the circumstances of the arrest and subsequent remand orders.
Ratio Decidendi: A writ of habeas corpus cannot be issued if the person is in judicial custody based on valid remand orders. The legality of detention is assessed at the time of the return of the rule, not at the time of filing the petition. Non-compliance with statutory provisions can lead to a writ being entertained only if it results in illegal detention.
Final Decision: The court dismissed the petition for a writ of habeas corpus, stating that the petitioner was lawfully detained under valid remand orders and had not raised the issues of illegality at the appropriate times during the remand proceedings.
JUDGMENT :
(Revati Mohite Dere, J.) :
1 By this petition preferred under Articles 226 and 227 of the Constitution of India, the petitioner seeks the following reliefs :
(b) This Hon'ble Court be pleased to issue a writ of certiorari and/or a writ, order or direction in the nature of certiorari and/or any other writ, order or direction and/or any other order to quash and/or set aside Arrest Memo dated 1st September 2023 issued by the Respondent No. 2, along with its effect, implementation, and all consequent actions take thereunder, Arrest Order dated 1st September, 2023 issued by the Respondent No.2, along with its effect, implementation, and all consequent actions taken and also Remand Applications dated 2nd September 2023 and 11th September, 2023, along with its effect, implementation, and all consequent actions take thereunder;
(c) This Hon'ble Court be pleased issue a writ of certiorari and/or a writ, order or direction in the nature of certiorari and/or any other writ, order or direction and/or any other order to quash and/or set aside Remand Orders dated 2nd September, 2023 and 11th September, 2023 passed by the Hon'ble Designated Court under the PMLA Act, Sessions Court, Mumbai along with its effect, implementation, and all consequent actions take thereunder;
(d) Pending the disposal of the present writ petition, this Hon'ble Court be pleased to temporarily release the Petitioner from the abjectly unlawful and arbitrary custody and incarceration in connection with E.C.I.R/MB ZO-II/29/2023/378 registered on 10th May, 2023 on such terms and conditions as this Hon'ble Court may deem fit and proper;
(e) Pending the disposal of the present writ petition, this Hon'ble Court be pleased to stay the effect, implementation, and operation of Arrest Memo dated 1st September, 2023 issued by the Respondent No.2, along, and all consequent actions take thereunder, Arrest Order dated 1st September, 2023 issued by the Respondent No.2, and all consequent actions take thereunder and Remand Applications dated 2nd September, 2023 and 11th September, 2023, along with its effect, implementation, and all consequent actions take thereunder;
(f) Pending the disposal of the present writ petition, this Hon'ble Court be pleased to stay the effect, implementation, and operation of Remand Orders dated 2nd September, 2023 and 11th September, 2023 passed by the Hon'ble Designated Court under the PMLA Act, Sessions Court, Mumbai along all consequent actions and orders passed taken or passed thereunder;
(g) That pending the final hearing and disposal of the Petition, the Petitioners prays that his verification may be dispensed with.
(h) Interim and ad interim relief in terms of prayer clause (c), (d), and (e), (f), and (g);
(i) Any such other and further reliefs as this Hon'ble Court may deem fit and proper.”
(emphasis supplied)
2. It is pertinent to note that the aforesaid petition has been placed before us as per the Roster, only in view of prayer clause (a) i.e. writ of habeas corpus. If prayer clause (a) which is the principal prayer, cannot be entertained, as being not maintainable in the facts, the question of entertaining rest of the prayers, would not arise. Hence, we proceed to consider whether the aforesaid petition seeking a writ of habeas corpus would be maintainable in the facts.
3. Although, learned senior counsel Mr. Amit Desai raised several grounds i.e. physical copy of the grounds of arrest not being served on the petitioner, illegality of the arrest order, passing of mechanical remand orders without application of mind and the petitioner not being produced before the competent Court within 24 hours of arrest, as statutorily mandated, we had at the very outset, made it clear to the
A writ of habeas corpus is not maintainable if the petitioner is in judicial custody under valid remand orders, and issues regarding the legality of arrest must be raised at the time of remand.
The requirement to provide written grounds for arrest is a constitutional mandate; failing this renders the arrest and consequent remand illegal, entitling the individual to immediate release.
The Enforcement Directorate officers are not Police officers under CrPC, thus they cannot seek custody beyond the initial 24 hours of arrest unless substantively justified; however, compliance with P....
The detention of an individual beyond 24 hours without being produced before a Magistrate violates Article 22(2) of the Constitution, rendering the arrest illegal.
Point of law : Where the custody of the petitioner corpus as been handed over as per a judicial order passed a Judicial Magistrate or a court of competent jurisdiction or a CWC constituted under the ....
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