Delhi High Court dismisses plea of PMLA accused(s) alleging illegal detention for want of judicial order granting judicial custody

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Delhi High Court: Three habeas corpus petitions were filed involving the illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody. A division bench of Suresh Kumar Kait and Shalinder Kaur, JJ., held that the petitioners were in lawful custody in view of the production warrants issued by the Additional Sessions Judge (ASJ), Patiala House Courts against the petitioners.

The petitions were filed seeking the issuance of a writ of habeas corpus or any other appropriate direction to the respondents since the fundamental rights of the petitioners as guaranteed under Articles 14, 21, and 22 were allegedly violated by the respondents. Their continued illegal detention suffers from the vice of being in a vacuum, as there was no judicial order remanding them to judicial custody as mandated under Section 167 of Criminal Procedure Code. In the absence of any judicial order remanding them to the custody of the Jail Superintendent, Tihar Jail, their detention has become patently illegal. The petitioners are seeking direction from the respondents to produce the petitioners and direct the forthwith release of the petitioners from illegal detention of the respondents thereby declaring the custody of the petitioners as arbitrary and illegal.

The Directorate registered an ECIR under the provisions of the Prevention of Money Laundering Act, 2002 (’PMLA’) for the alleged offence of money laundering under Section 3 of PMLA, punishable under Section 4 of PMLA, based on a scheduled offense allegedly committed under the provisions of Penal Code, 1860 (‘IPC’) and more specifically alleged in FIR registered at PS Kalkaji, South East District, New Delhi and FIR registered at PS Economic Offence Wing, New Delhi. As part of investigation in the ECIR, the petitioners were arrested, however, since the statutory period of sixty days as provided for completion of investigation under Section 167 CrPC was set to expire on 08-12-2023, however, ED on 06-12-2023 filed a prosecution complaint under Section 44 read with Section 45 of PMLA.

Counsel for the petitioner submitted that the Directorate did not bother to file any application seeking extension of judicial custody of the petitioners as mandated under law and having been done religiously for all the past occasions while seeking extension of judicial custody of the petitioners. It was emphatically submitted that it is abundantly clear that there was no order passed by the learned ASJ remanding the petitioners to further judicial custody as is mandated under Section 167 CrPC beyond 07-12-2023. On inspection it was found that no application seeking extension of remand or any order recording the same was passed by the learned ASJ, thus, the petitions were filed as detention/custody can only be done in accordance with express provisions of a statute and passing of a valid judicial order extending judicial custody is needed to validate the custody of a person.

The Court observed that in the said case, during the period of a valid order under Section 167 CrPC, the accused was placed under judicial custody, his remand was to continue till 26-04-2005, however, the chargesheet was filed on 25-04-2005 and the Magistrate took cognizance on the chargesheet on the same day as the accused was in judicial custody till 26-04-2005. The production warrants were issued against him for the same date. The objection raised on behalf of the accused contemplating illegal custody on 25-04-2005 was that no valid order for remand was passed under Section 167(2) CrPC or Section 309(2) CrPC on 25-04-2005 or 26-04-2005. It is also not the case of the petitioners that prosecution complaint was filed by ED beyond the stipulated period thereby entitling the petitioners for “default bail”.

The Court also noted that as no bail application was moved on behalf of any of the petitioners at that time, thus, the petitioners must remain in “custody of court”. The ASJ rightly directed for issuance of production warrants for the petitioners to be produced in the Court on the next date of hearing. As per record, the said production warrants were issued on 09-12-2023 for production of the petitioners for 13-12-2023.

The Court remarked that “assuming a competent court has taken cognizance of chargesheet/prosecution complaint and posts the case at a particular stage of proceedings/trial, however, on the said date of hearing, the accused in that case is not produced from judicial custody, due to some unavoidable reason. In such a situation, the court issues production warrant against the said accused and the case is posted for the next date of hearing. Can it be said, during the period, when the accused was produced on the last date of hearing and is to be produced before the court on the next date of hearing in execution of production warrants, his judicial custody is illegal. To our mind, the answer is in negative, as in such a situation, the custody of accused is continuum and there is no “break” in the custody of such an accused. The position, however, will be different when, the accused is not produced before such a Court on the date of hearing and no production warrant is issued for the said accused on the same date of hearing but is issued subsequently. In such a situation, the custody of the accused will not be in continuum and for the break period, it may be illegal.

Thus, the Court held that the petitioners are suffering from illegal custody since 07-12-2023 and the Judge has rightly issued production warrants against the petitioners on 07-12-2023 for production of the petitioners and the petitioners remain in lawful custody.

[Nitin Garg v Union of India, 2023 SCC OnLine Del 8146 decided on 19-12-2023]

Advocates who appeared in this case :

Mr. Vikram Chaudhri, Sr. Adv. with Mr. Abhay Raj Varma, Mr. Nitesh Rana, Mr. Arjun Rekhi, Mr. Rishi Sehgal, Ms. Arveen Sekhon, Ms. Nikita Gill and Ms. Muskaan Khurana Advocates for petitioner

Mr. Zoheb Hossain, Special Counsel with Mr. Vivek Gurnani, Mr. Manish Jain, Mr. Simon Benzamin, Mr. Sougata Ganguly, Mr. Amit Jain, Mr. Ishaan Baisla, Mr. Kartik Sabharwal, Mr. Baibhav and Mr. Vinod Tiwari, Advs. for R-1.

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