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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
UMESH A. TRIVEDI, M.K. THAKKER, JJ.
Rakesh Manekchand Kothari – Appellant
Versus
Union of India and Others – Respondents
Special Criminal Application No. 4247 of 2015
Decided On : 09-08-2023
Key Points: - The judgment discusses legality of arrest under PMLA and whether the offence is cognizable or non-cognizable, including arguments about Section 19 and material in possession (!) (!) (!) . - It addresses the interplay between the Act and Code provisions, including the applicability of Chapter XII and Sections 154-157, 167, 172, and the overriding effect of the PMLA and its amendments (!) (!) (!) (!) . - It critiques admissibility and reliance on statements recorded under Section 50 of the PMLA in supporting arrest/detention, including constitutional protections under Article 20(3) and Article 21 (!) (!) (!) . - It notes that since earlier orders have attained finality, a successive writ of habeas corpus may be barred absent substantial changes in circumstances or grounds not available previously (!) (!) (!) . - It recognizes a larger Supreme Court framework that remand orders must be challenged via appropriate remedies and not via habeas corpus, with summaries of law on cognizability after amendments (!) (!) . - It discusses the explicit Explanation to Section 45 (as of 2019) clarifying cognizability and non-bailability and its impact on arrest authority (!) (!) . - It concludes with the rejection of the successive habeas corpus petition and vacating interim bail, while referencing the finality of prior orders (!) (!) (!) . - Note: The references above are used to support statements about the judgment’s positions; no external case law or citations are included beyond the document’s text.
JUDGMENT :
UMESH A. TRIVEDI, J.
1. This petition is filed by the petitioner praying for following reliefs:
(b) At the interim/ad-interim stage, pending final disposal of the instant writ petition, the Petitioner may please be released in PMLA Case No. 4/2014 filed in ECIR/01/SRT/2014 dated 17.04.2014 pending before the Principal District & Sessions Judge, Ahmedabad (Rural), the designated Special Court under Prevention of Money Laundering Act, 2002 at Ahmedabad on such terms and conditions as may deem fit and proper in the interest of justice.
(c) dispense with an affidavit in support of the Petition since the Petitioner is in custody.
(d) and/or pass any other or further orders which Your Lordships may deem fit and proper in the interest of justice.”
2. When the matter came up for hearing before this Court on 14.07.2015, a statement was made on behalf of the petitioner that after the amendment of the year 2005 in the Prevention of Money Laundering Act, 2002 (hereinafter referred to as “the Act”), the offence for which the petitioner has been involved is non-cognizable and petitioner has been taken into custody in violation of provisions contained in “the Act” as well as mandatory provision of Section 155 read with Section 4 (2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”), an investigation has started without the orders of the Magistrate and petitioner was arrested without warrants. Considering the said statement, as coming out from the order, notice of Rule came to be issued.
2.1 Thereafter, vide order dated 03.08.2015, after hearing the appearing parties, and considering the submissions made, this Court issued Rule in the petition and petitioner was ordered to be released till final decision of this petition subject to his furnishing a personal bond in the sum of Rs. 50,000/- with one surety of the like amount to the satisfaction of the special Court and on observing other general conditions as well as condition that he will not leave country without prior permission of the trial Court.
2.2 Prior to summer break, this matter was on board for hearing dated 24.04.2023 and it came to be adjourned on 25.04.2023 in view of the leave-note filed by the learned advocate for the petitioner.
2.3 On 25.04.2023, a request was made on behalf of learned advocate for the petitioner that the learned Counsel appearing in this matter all throughout was busy in other Court and he would be available on Friday i.e. on 28.04.2023 and if the matter spills over, it can be heard on Saturday i.e. 29.04.2023, being a Court working Saturday as per the calendar. Therefore, matter was adjourned to 28.04.2023. However, on that day, time was sought for to place on record required documents for the purpose of hearing of this petition, which would be submitted with the Registry on or before 16.06.2023 i.e. after summer break.
2.4 On 20.06.2023, again time was sought for by the learned advocate for the petitioner, which was granted and matter was adjourned to 27.06.2023. Since then, hearing started from 27.06.2023, though intermittently accommodating learned advocates for the appearing parties and on 04.07.2023, learned advocate for the petitioner submitted that the petitioner would like to give written submissions within two days hereof i.e. within two days from 04.07.2023 and the hearing be treated as concluded. Thereafter, matter was adjourned to 06.07.2023. Since matter was adjourned to 06.07.2023, written submi
AI
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 Enforcement Directorate can seek custody of arrested individuals under the Prevention of Money Laundering Act, but such custodial requests must be evaluated within the framework of existing law e....
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.
Written grounds of arrest must be provided to the accused under Section 19 of the PMLA; non-compliance renders the arrest illegal.
Mandatory compliance with Section 19 of the Prevention of Money-Laundering Act is essential; failure to comply renders arrest and subsequent proceedings illegal.
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.
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