Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
M. JEYAPAUL, SNEH PRASHAR, JJ.
ARUN SHARMA – Appellant
Versus
UNION OF INDIA AND OTHERS – Respondent
CRWP No. 971 of 2016
Decided on : 22-07-2016
(i) Section 65 of PMLA stipulates that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of PMLA, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PMLA.
(ii) On the same principles, in absence of anything inconsistent in PMLA with section 88 of CrPC, when a person voluntarily appears before the Special Court for PMLA pursuant to issuance of process vide summons or warrant, and offers submission of bonds for further appearances before the Court, any consideration of his application for furnishing such bond, would be necessarily governed by section 88 of the CrPC read with section 65 of PMLA – Criminal Procedure Code, 1973, S.4, S.5 & S.88. (Paras 10 & 11)
Section 71 of PMLA provides that the provisions of PMLA shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force – These provision are akin to section 4(2) read with section 5 of the CrPC, which also makes the provisions of the CrPC applicable for these purposes in every special statute, but subject to the inconsistent provisions of such special statutes – We find that after arrest of a person under section 19 of PMLA, he is to be produced before the Court within 24 hours if the investigations could not be completed within that time – Thereafter, if the investigation is not completed even within further period of sixty days from the date of first remand, in such event section 167(2) of the CrPC would directly come in aid of such arrested person – He shall have indefeasible right to be released on bail in the PMLA case, if he is prepared to and does furnish bail.
(B) Prevention of Money Laundering Act, 2002, S.45 – Arrest and Bail – Accused not arrested during investigation – Held;
(a) that rigors of Section 45(1)(ii) of PMLA would be attracted only while considering the application of an accused for release on bail or his own bond, if he has been arrested by the authorized officer under Section 19 of the PMLA before taking cognizance.
(b) In other words, if any person though available was neither arrested during investigation under PMLA, nor produced in custody as envisaged in Section 170 Cr.P.C, if upon issuance of process in a PMLA Complaint either by summons or warrant he appears before Court on his own volition, he would be entitled to forthwith furnish his bonds with or without sureties for further appearances without any incarceration in custody.
(c) Section 45(1)(ii) of PMLA has no application in case of a person not arrested under section 19 of PMLA in such execution of bond for further appearance.
(d) At post cognizance stage, any person already arraigned as an accused of offence under Sections 3 read with section 4 of PMLA, cannot be arrested under Section 19 of PMLA, and such person can be arrested only upon execution of warrant if issued by the Court taking cognizance.
M. JEYAPAUL, J.
1. On asking of the Court Mr. V.K. Kaushal, Advocate took notice for Union of India.
2. Heard the submissions made on either side.
3. The petitioner is a practicing advocate, who has invoked extra ordinary writ jurisdiction under Article 226 read with 227 of the Constitution of India, in respect of a PMLA Complaint No.4 of 2015 filed by an authority under PMLA before the Special Court for PMLA at Mumbai in ECIR no. ECIR/14/MZO/2013 inter alia against M/s Namdhari Food International Pvt. Ltd., Shri Inder Singh Bal, Shri Iqbal Singh Bal, Shri Surjit Singh Bal, M/s. Namdhari Rice and General Mills, Shri Daljit Singh Bal, Shri Jaspal Singh Bal and Jai Singh Bal, collectively known as `Namdhari Group' of Sirsa, Haryana. The said ECIR was registered on the basis of Scheduled offences alleged in FIR No. 216 of 2013 registered u/s 120B, 409, 465, 467, 468, 471, 474, 477(A) of IPC inter alia against the said two companies, which was later investigated by Economic Offence Wing, Mumbai by renumbering the same as CR no. 89 of 2013. Charge Sheet and Supplementary Charge Sheets have been filed in the said Scheduled Offence in CR no. 89 of 2013. Vide a Provisional Attachment Order no. 05/2015 the Plant of M/s Namdhari Food International Ltd at Sri Jiwan Nagar, Dabwali Road, Tehsil: Rania, Sirsa, Haryana was also attached under PMLA.
4. The petitioner contends that despite grave and heinous offence under PMLA by these accused, no arrest was made during investigations by exercising power conferred vide Section 19 of PMLA. Even the Special Court while taking cognizance, instead of issuing non-bailable warrants, issued only summons to these accused persons. He submits that economic offences is worse than murder and therefore Section 45(1)(ii) of PMLA imposes twin conditions, which are to be satisfied before release on bail or bond of any person accused of offence under PMLA, and which are similar to those imposed under NDPS Act, TADA, POTA, MCOCCA etc. Consequently, according to him the application of Section 45 and Section 19 of PMLA is not governed in any manner by the fact of filing a Complaint under PMLA or by an order of taking cognizance thereon. He submits that a Division Bench of this Court, however, vide order dated 1.10.2015 in CRM NO. M-28490 of 2015 in the matter of Dalip Singh Mann and Ors v. Enforcement Directorate, erroneously, without any rational basis and contrary to the legislative intent, held that the rigors of Section 45(1)(ii) of the Act would be attracted only while considering the bail plea of an accused who has been arrested by the Enforcement Directorate under Section 19 of the Act. He submits that the view cannot be treated as having any precedent value and shall not be applied in the instant PMLA Case No. 4 of 2015. He submits that these accused have amassed moveable and immoveable assets by resorting to money laundering, and that if they are not arrested under section 19 of PMLA and taken in judicial custody, they are likely to tamper with the evidence and may influence the witnesses.
5. We have adverted to the ratio laid down by the Hon'ble Supreme Court in Navinchandra N. Majithia v. State of Maharashtra, (2000) 7 SCC 640 as regard the issue of jurisdiction. We are satisfied that substantial cause of action has arisen in the jurisdiction of this Court.
6. For the purpose of the adjudication of the legal issues involved in the instant petition, detailed allusion on allegations in the PMLA Complaint no. 4 of 2015 as stated in the writ petition is not warranted. It would suffice to say that around June 2016 cognizance was taken by the Special Court for PMLA at Mumbai in the said PMLA Complaint No.4 of 2015. There is no dispute on the fact that during the investigations under PMLA, these accused persons were not arrested by the authorities under section 19 of PMLA. After filing of Complaint, Process was issued by issuing summons to the accused including the aforesaid accused nos. 52 to 55 and 60 to
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
