JUDGMENT

Yogesh Khanna, J. - This petition is filed with following prayers :

“A. Pass necessary orders and directions, thereby quashing and setting aside the impugned Para No.6 of the order dated 05.08.2021 whereby the Ld.Special Judge dismissed the Application filed by the Petitioner for declaring his arrest illegal in terms of A. 22 (2) of Constitution of India r/w s. 57 CrPC and for necessary orders for remanding the Petitioner to judicial custody till the disposal of the said application, as the Petitioner was not produced within 24 hours from the time of his actual arrest;”

2. The petition challenges an order dated 05.08.2021 wherein an application moved by the petitioner herein to declare the arrest of the petitioner as illegal was dismissed without any reason. It is the submission of learned counsel for the petitioner the arrest memo of the petitioner shows he was arrested at 19.55 hours of 03.08.2021 but was put under restrain at 8.30 AM itself when his premises was raided. The search and seizure continued from 8.30 AM till 3.30 PM of 03.08.2021. Thereafter he was taken to office of Directorate of Enforcement for recording of his statement. It is argued per settled law the time when an offender is first put to restraint is the time of arrest and if this Court adheres to this argument then in that event the petitioner was not produced before the learned Special Judge, PMLA within 24 hours of his arrest, hence his arrest would be illegal.

3. The learned counsel for the petitioner has referred to Ashfak Hussain Allah Detha @ Siddiqui and another vs. The Assistant Collector of Customs (P) Bombay and another (1990) 1 BOM CR 451 wherein the Court held:

“10. It is thus clear that arrest being a restraint on the personal liberty, it is complete when such restraint by an authority, commences. Whether a person is arrested or not does not depend on the legality of the act. It is enough if an authority clothed with the power to arrest, actually imposes the restraint by physical act or words. Whether a person is arrested depends on whether he has been deprived of his personal liberty to go where he pleases. It stands to reason, therefore, that what label the Investigating Officer affixes to his act of restraint is irrelevent. For the same reason, the record of the time of arrest is not an index to the actual time of arrest, the arrest commences with the restraint placed on the liberty of the accused and not with the time of "arrest" recorded by the Arresting Officers.”

4. Further in Ramu vs. State of Karnataka ILR 1991 KAR 1861 the Court held:

“A man can be in custody without his being formally arrested when restriction is imposed on his movements either by police surveillance or some other restriction by the police. Arrest commences with the restraint placed on the liberty of the accused and not with the time of the formal arrest recorded by the Arresting Officer. In this case, it is not in dispute that the petitioner was under police surveillance during his period of stay for treatment in the hospital from 30-09-1989 to 12-11-1989. There were restrictions on the movement of the petitioner even in the hospital. Therefore, there were restrictions placed in the form of surveillance on the movement of the petitioner even when he was in the hospital. The period of surveillance over the petitioner in the hospital from 30-9-1989 to 12-11-1989 will have to be considered as a period of custody in the light of the various Rulings cited above. Besides, there is a mahazar produced at Annexure D which is drawn by the police on 12-11-1989 at the time when this petitioner was taken into the formal custody”

5. And in State of Punjab vs. Davinder Pal Singh Bhullar and Others (2011) 14 SCC 770 the Court held:

“107. It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order. In such a fact situation, th