# CASE DETAILS V. SENTHIL BALAJI v. THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS

- **Citation:** 2023 INSC 677
- **Court:** Supreme Court of India
- **Decided:** 2023-08-07
- **Case number:** Criminal Appeal Nos. 2284-2285 of 2023
- **Bench:** A.S. Bopanna, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-v-senthil-balaji-v-the-state-represented-by-deputy-director-and-ors-36602
- **Pages:** 79

## Headnote

Issues for consideration:
(i) When an arrestee is forwarded to the jurisdictional Magistrate under
Section 19(3) of the Prevention of Money Laundering Act, 2002, whether
writ of Habeus Corpus would lie;
(ii) Whether s.41 CrPC has got any application to an arrest made under
PMLA, 2002;
(iii) The actual import of Section 167(2) of the CrPC, 1973 as to
whether the 15 days period of custody in favour of the police should be
only within the fi rst 15 days of remand or spanning over the entire period
of investigation - 60 or 90 days, as the case may be, as a whole.
Constitution of India - Writ of Habeus Corpus - Prevention of
Money Laundering Act, 2002 - Respondent-Authority invoked s.19
of the PMLA, 2002 and appellant was arrested on 14.06.2023 - Writ
of Habeus corpus fi led - Meanwhile, respondent fi led an application
before the Principal Sessions Judge seeking judicial custody for 15 days
- Order of remand passed:
Held: A writ of Habeas Corpus shall only be issued when the detention
is illegal - As a matter of rule, an order of remand by a judicial offi cer,
culminating into a judicial function cannot be challenged by way of a writ
of Habeas Corpus, while it is open to the person aggrieved to seek other
statutory remedies - When an arrestee is forwarded to the jurisdictional
Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus
854
SUPREME COURT REPORTS
[2023] 12 S.C.R.
would lie - Any plea of illegal arrest is to be made before such Magistrate
since custody becomes judicial - An order of remand has to be challenged
only before a higher forum as provided under the CrPC, 1973 when it
depicts a due application of mind both on merit and compliance of Section
167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002 - In the
instant case, when writ of Habeus Corpus was taken up for hearing on a
mentioning, the appellant was duly produced before the Principal Sessions
Judge in compliance with Section 19 of the PMLA, 2002 - The custody thus
becomes judicial as he was duly forwarded by the respondents - Therefore,
even on the date of hearing before the High Court there was no cause for
fi ling the Writ Petition - Added to that, an order of remand was passed on
14.06.2023 itself - The two remand orders passed by the Court, depicted a
clear application of mind - Despite additional grounds having been raised,
they being an afterthought, there is no hesitation in holding that the only
remedy open to the appellant is to approach the appropriate Court under
the Statute - Also, as the arrest and custody were already upheld by way of
rejection of the bail application - Therefore, even on that ground it is held
that a writ of Habeas Corpus is not maintainable. [Paras 29, 81 and 88]
Code of Criminal Procedure, 1973 - Prevention of Money
Laundering Act, 2002 - Application of s.41A CrPC to an arrest made
under the PMLA 2002:
Held: An Authorized Offi cer under the PMLA, 2002 is not duty bound
to follow the rigor of Section 41A of the CrPC, 1973 as against the binding
conditions under Section 19 of the PMLA, 2002 - As there is already an
exhaustive procedure contemplated under the PMLA, 2002 containing
suffi cient safeguards in favour of the person arrested, Section 41A of the
CrPC, 1973 has no application at all. [Para 35]
Prevention of Money Laundering Act, 2002 - To eff ect an arrest
under the Act:
Held: To eff ect an arrest, an offi cer authorised has to assess and
evaluate the materials in his possession - Through such materials, he is
expected to form a reason to believe that a person has been guilty of an
off ence punishable under the PMLA, 2002 - Thereafter, he is at liberty to
arrest, while performing his mandatory duty of recording the reasons - The
855
said exercise has to be followed by way of an information being served on
the arrestee of the grounds of arrest - Any non-compliance of the mandate
of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself -
Under sub-section (2), the Authorised O

## Text

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[2023] 12 S.C.R. 853 : 2023 INSC 677
853
CASE DETAILS
V. SENTHIL BALAJI
v.
THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS.
(Criminal Appeal Nos. 2284-2285 of 2023)
AUGUST 07, 2023
[A.S. BOPANNA AND M. M. SUNDRESH, JJ.]
HEADNOTES
Issues for consideration:
(i) When an arrestee is forwarded to the jurisdictional Magistrate under
Section 19(3) of the Prevention of Money Laundering Act, 2002, whether
writ of Habeus Corpus would lie;
(ii) Whether s.41 CrPC has got any application to an arrest made under
PMLA, 2002;
(iii) The actual import of Section 167(2) of the CrPC, 1973 as to
whether the 15 days period of custody in favour of the police should be
only within the fi rst 15 days of remand or spanning over the entire period
of investigation - 60 or 90 days, as the case may be, as a whole.
Constitution of India - Writ of Habeus Corpus - Prevention of
Money Laundering Act, 2002 - Respondent-Authority invoked s.19
of the PMLA, 2002 and appellant was arrested on 14.06.2023 - Writ
of Habeus corpus fi led - Meanwhile, respondent fi led an application
before the Principal Sessions Judge seeking judicial custody for 15 days
- Order of remand passed:
Held: A writ of Habeas Corpus shall only be issued when the detention
is illegal - As a matter of rule, an order of remand by a judicial offi cer,
culminating into a judicial function cannot be challenged by way of a writ
of Habeas Corpus, while it is open to the person aggrieved to seek other
statutory remedies - When an arrestee is forwarded to the jurisdictional
Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeus Corpus
854
SUPREME COURT REPORTS
[2023] 12 S.C.R.
would lie - Any plea of illegal arrest is to be made before such Magistrate
since custody becomes judicial - An order of remand has to be challenged
only before a higher forum as provided under the CrPC, 1973 when it
depicts a due application of mind both on merit and compliance of Section
167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002 - In the
instant case, when writ of Habeus Corpus was taken up for hearing on a
mentioning, the appellant was duly produced before the Principal Sessions
Judge in compliance with Section 19 of the PMLA, 2002 - The custody thus
becomes judicial as he was duly forwarded by the respondents - Therefore,
even on the date of hearing before the High Court there was no cause for
fi ling the Writ Petition - Added to that, an order of remand was passed on
14.06.2023 itself - The two remand orders passed by the Court, depicted a
clear application of mind - Despite additional grounds having been raised,
they being an afterthought, there is no hesitation in holding that the only
remedy open to the appellant is to approach the appropriate Court under
the Statute - Also, as the arrest and custody were already upheld by way of
rejection of the bail application - Therefore, even on that ground it is held
that a writ of Habeas Corpus is not maintainable. [Paras 29, 81 and 88]
Code of Criminal Procedure, 1973 - Prevention of Money
Laundering Act, 2002 - Application of s.41A CrPC to an arrest made
under the PMLA 2002:
Held: An Authorized Offi cer under the PMLA, 2002 is not duty bound
to follow the rigor of Section 41A of the CrPC, 1973 as against the binding
conditions under Section 19 of the PMLA, 2002 - As there is already an
exhaustive procedure contemplated under the PMLA, 2002 containing
suffi cient safeguards in favour of the person arrested, Section 41A of the
CrPC, 1973 has no application at all. [Para 35]
Prevention of Money Laundering Act, 2002 - To eff ect an arrest
under the Act:
Held: To eff ect an arrest, an offi cer authorised has to assess and
evaluate the materials in his possession - Through such materials, he is
expected to form a reason to believe that a person has been guilty of an
off ence punishable under the PMLA, 2002 - Thereafter, he is at liberty to
arrest, while performing his mandatory duty of recording the reasons - The
855
said exercise has to be followed by way of an information being served on
the arrestee of the grounds of arrest - Any non-compliance of the mandate
of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself -
Under sub-section (2), the Authorised Offi cer shall immediately, after the
arrest, forward a copy of the order as mandated under sub-section (1) together
with the materials in his custody, forming the basis of his belief, to the
Adjudicating Authority, in a sealed envelope - Thereafter, the arrestee has to
be taken to the Special Court, or the Judicial Magistrate or the Metropolitan
Magistrate, as the case may be, having the jurisdiction within 24 hours of
such arrest. [Paras 39 and 40]
Prevention of Money Laundering Act, 2002 - Non-compliance of
s.19 of the Act:
Held: S.62 of the PMLA, 2002 is a reiteration of the mandatory
compliance of Section 19 of the PMLA, 2002 - It is in the nature of a warning
to an offi cer concerned to strictly comply with the mandate of Section 19
of the PMLA, 2002 in letter and spirit failing which he would be visited
with the consequences - It is his bounden duty to record the reasons for his
belief in coming to conclusion that a person has been guilty and therefore,
to be arrested - Any non-compliance of the mandate of Section 19 of the
PMLA, 2002 would enure to the benefi t of the person arrested - For such
non-compliance, the Competent Court shall have the power to initiate action
under Section 62 of the PMLA, 2002. [Paras 42 and 88]
Code of Criminal Procedure, 1973 - Prevention of Money
Laundering Act, 2002 -The PMLA, 2002 shall have precedence:
Held: A conjoint reading of Section 65 of the PMLA, 2002 along
with Sections 4 and 5 of the CrPC, 1973 leaves no room for doubt on the
precedence of the former over the latter when it comes to investigation.
[Para 45]
Prevention of Money Laundering Act, 2002 - Inquiry and
investigation:
Held: For an inquiry and investigation there can be same materials,
while there is no bar for reliance on additional ones - They can travel in
the same channel, but their destinations are diff erent - One material can
be used for both purposes, along with numerous others - So long as they
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS.
856
SUPREME COURT REPORTS
[2023] 12 S.C.R.
travel together, there is not much of a diff erence between an inquiry and
investigation - When they take separate routes, an inquiry ends before the
Adjudicating Authority, while the other leads to a Special Court in the form
of a complaint. [Para 46]
Code of Criminal Procedure, 1973 - Detention and custody:
Held: Section 167(2) of the CrPC, 1973 authorises the detention of
the accused in custody by an order of the Magistrate - It does consciously
treat a detention diff erent from custody - Custody will be either to the
court or an investigating agency - Detention is normally made only by
an investigating agency prior to the production before the Magistrate - A
custody from being judicial may turn into police through an order passed
by the Magistrate - Detention may at best be a facet of custody - However,
they are not synonymous with each other - When detention is authorised,
it would become custody. [Para 57]
Code of Criminal Procedure, 1973 - Prevention of Money
Laundering Act, 2002 - Interplay between s.19 of PMLA, 2002 and
s.167 of the CrPC:
Held: A Magistrate has a distinct role to play when a remand is made
of an accused person to an authority under the PMLA, 2002 - It is his
bounden duty to see to it that s.19 of the PMLA, 2002 is duly complied with
and any failure would entitle the arrestee to get released - The Magistrate
shall also peruse the order passed by the authority u/s. 19(1) of the PMLA,
2002 - S.167 of the CrPC, 1973 is also meant to give eff ect to s.19 of the
PMLA, 2002 and therefore it is for the Magistrate to satisfy himself of its
due compliance - The interplay between Section 19(1) of the PMLA, 2002
and Section 167 of the CrPC, 1973, would facilitate the application of the
latter after the conclusion of the former - One cannot say that Section 167(2)
of the CrPC, 1973 is applicable to an authority when it comes to arrest but
not to custody. [Paras 68 and 69]
Code of Criminal Procedure, 1973 - s.167 - Curtailment of 15 days
of police custody by any extraneous circumstances:
Held: Curtailment of 15 days of police custody by any extraneous
circumstances, act of God, an order of Court not being the handy work of
investigating agency would not act as a restriction. [Para 88]
857
Code of Criminal Procedure, 1973 - Sub-section (2) of s.167 -
Words "such custody":
Held: The words "such custody" occurring in Section 167(2) of the
CrPC, 1973 would include not only a police custody but also that of other
investigating agencies - The word "custody" under Section 167(2) of the
CrPC, 1973 shall mean actual custody. [Para 88]
Code of Criminal Procedure, 1973 - Sub-section (2) of s.167 -
Reference to the words "a term not exceeding 15 days in the whole":
Held: Sub-section (2) of Section 167 of the CrPC, 1973 further makes
a reference to the words "a term not exceeding 15 days in the whole"- The
term has been introduced on purpose keeping in view the proviso which
gives an outer limit for the conclusion of the investigation - Similarly, the
words "not exceeding 15 days in the whole" should be understood in the
very same manner - The word "whole" means "total, not divided, lacking
no part, entire, full, and complete" - The maximum period of 15 days of
police custody is meant to be applied to the entire period of investigation -
60 or 90 days, as a whole. [Paras 56 and 88]
Code of Criminal Procedure, 1973 - Does s.167(2) CrPC restrict
a police custody only to the fi rst 15 days of remand - Matter referred
to Larger Bench:
Held: The Registry is directed to place the matter before Hon'ble the
Chief Justice of India for appropriate orders to decide the larger issue of the
actual import of Section 167(2) of the CrPC, 1973 as to whether the 15 days
period of custody in favour of the police should be only within the fi rst 15
days of remand or spanning over the entire period of investigation - 60 or
90 days, as the case may be, as a whole. [Para 91]
LIST OF CITATIONS AND OTHER REFERENCES
CBI v. Anupam J. Kulkarni (1992) 3 SCC 141: [1992] 3 SCR 158 -
reference to larger Bench.
Indore Development Authority v. Manoharlal (2020) 8 SCC 129:
[2020] 3 SCR 1 - followed.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS.
858
SUPREME COURT REPORTS
[2023] 12 S.C.R.
State of Maharashtra v. Tasneem Rizwan Siddiquee (2018) 9 SCC
745: [2018] 11 SCR 374; Vijay Madanlal Choudhary v. Union of India 2022
(10) SCALE; State of Rajasthan v. Basant Agrotech (India) Ltd. (2013) 15
SCC 1: [2013] 17 SCR 395; Sundeep Kumar Bafna v. State of Maharashtra
(2014) 16 SCC 623: [2014] 4 SCR 486; Bharat Damodar Kale v. State of
A.P. (2003) 8 SCC 559; Satender Kumar Antil v. CBI (2022) 10 SCC 51;
Satyajit Ballubhai Desai v. State of Gujarat (2014) 14 SCC 434: [2013] 3
SCR 884; Directorate of Enforcement v. Deepak Mahajan (1994) 3 SCC
440: [1994] 1 SCR 445; Ashok Munilal Jain v. Directorate of Enforcement
(2018) 16 SCC 158; Rakesh Kumar Paul v. State of Assam (2017) 15 SCC 67:
[2017] 8 SCR 785; Commissioner of Central Excise, Bangalore v. Srikumar
Agencies & Ors. (2009) 1 SCC 469: [2008] 16 SCR 720 - relied on.
CBI v. Vikas Mishra (2023) 6 SCC 49; Arnesh Kumar v. State of Bihar
(2014) 8 SCC 273: [2014] 8 SCR 128; Chaganti Satyanarayana v. State
of Andhra Pradesh (1986) 3 SCC 141: [1986] 2 SCR 1128; Budh Singh v.
State of Punjab (2009) 9 SCC 266 - referred to.
Glaze v. Hart 225 M.O. App. 1205 - referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
2284-2285 of 2023
From the Judgment and Order dated 04.07.2023 and 14.07.2023 of the
High Court of Judicature at Madras in HCP No. 1021 of 2023.
With
Criminal Appeal Nos. 2288-2289, 2286, 2287 and 2290 of 2023.
Appearances:
Tushar Mehta, Solicitor General, Kapil Sibal, Mukul Rohtagi, Devadatt
Kamat, Sr. Advs., Arjun Garg, Meenesh Dubey, Aakash Nandolia, Rajesh
Imandar, Revanta Solanki, Ms. Sagun Srivastava, Ms. Misha Rohatgi, Nakul
Mohta, Bharat Monga, Ms. Riya Dhingra, K.M. Arun, N. Bharani Kumar,
Ms. Roopali Samuel, Ms. Anusha, Ms. Sumedha, Aakash Kumar, Muthu
Thangathurai, Ms. Akshita Chaubey, Mukesh Kumar Maroria, Mrs. Madhav
859
Sinhal, Kanu Agarwal, Zoheb Hussain, Arkaj Kumar, Vivek Gurnani,
Kavish G, Ms. Manisha Dubey, Balaji Srinivasan, Shiva Krishnamurti, Mrs.
Lakshmi Rao, Advs. for the appearing parties.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
M. M. SUNDRESH, J.
1. Leave granted.
2. After the Scheduled Off ence went through an elongated judicial
journey, it is the turn of the Enforcement Case Information Report under
the Prevention of Money Laundering Act, 2002 (hereinafter referred to as
"the PMLA, 2002"). What is under challenge before us are the orders passed
by the majority of the Judges when a reference was made on a diff erence
of opinion by the Division Bench of the Madras High Court, while dealing
with a Writ Petition fi led seeking a writ of Habeas Corpus in pursuance of
an arrest made, followed by a remand to the judicial custody, and then to the
authority concerned. Though arguments at length are made at the Bar, the
principal issue is only on the remand in favour of the investigating agency,
without seeking any specifi c prayer challenging the remand orders, though
additional grounds were raised.
3. Heard Shri Kapil Sibal and Shri Mukul Rohatgi learned Senior
Advocates appearing for the appellant and Shri Tushar Mehta, learned
Solicitor General appearing for the respondents. We have also perused the
documents and the written arguments fi led.
A BIRD'S EYE VIEW:
4. We shall fi rst give a narration of the basic facts suffi cient enough to
decide the lis. For a proper understanding, we adopt the appeals arising out of
Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 as the lead case.
The appellant in the appeals arising out of Special Leave Petition (Criminal)
Nos. 8652 -8653 of 2023 is none other than the wife of the appellant in the
appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940
of 2023, being the writ Petitioner before the High Court. Incidentally, the
respondents, though fi led separate appeals arising out of Special Leave
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS.
860
SUPREME COURT REPORTS
[2023] 12 S.C.R.
Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and 8750 of 2023,
are appositely referred as respondents.
5. The appellant is a Cabinet Minister of the State of Tamil Nadu. After
a see-saw legal battle, his status remains that of an accused pursuant to the
orders passed by this Court in the Scheduled Off ence.
6. A case was registered in Enforcement Case Information Report
No. 21 of 2021 by the Respondent No.1 against the appellant and others. It
was followed by summons dated 04.08.2021 and 07.10.2021 requiring the
attendance of the appellant. Further summons were issued on 07.03.2022
and 24.07.2022. A search was conducted by the Authorised Offi cer invoking
Section 17 of the PMLA, 2002 at his premises on 13.06.2023.
7. Finding that the appellant was not extending adequate cooperation,
the Authority had invoked Section 19 of the PMLA, 2002 by way of an
arrest on 14.06.2023. An arrest memo was also prepared. Though grounds
of arrest were furnished, the appellant declined to acknowledge them. The
information pertaining to the arrest was also intimated to his brother, sisterin-law and wife.
8. The appellant was taken to the Tamil Nadu Government Multi Super
Speciality Hospital, Chennai as he complained of chest pain. His wife rushed
to the High Court and fi led a Habeas Corpus petition being HCP No.1021
of 2023 on the very same day. In the meanwhile, the respondents fi led an
application before the learned Principal Sessions Judge seeking judicial
custody for 15 days. An order of remand was passed sending him to judicial
custody till 28.06.2023.
"At the request of the Special Public Prosecutor, Enforcement
Directorate, Chennai fi led along with ECIR, Remand Report and other
documents I came down to Tamil Nadu, Government Multi Super
Speciality Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J. CECILY
MARY MAJELLA, Associate Professor, Cardiology certifi ed that the
accused Senthil Balaji is conscious and oriented. Then I met Thiru.
V. Senthil Balaji, the accused in the ICU ward of the said hospital
and enquired in the presence of Dr. J. CECILY MARY MAJELLA.
Heard the Special Public Prosecutor and the Senior Advocate Mr. N.
R. Elango, who appeared for the accused. Grounds of Arrest was said
861
to have been conveyed by the Investigating Offi cer, but the accused
denied to acknowledge and signed the same. Also relatives of the
accused are said to have been not available in the place of arrest and
they have been informed through SMS and Email since they didn't
pick the phone call. Proof has also been produced. I informed the
accused about the grounds of arrest and his right of legal assistance.
The accused complained that he was man handled by the ED offi cials
but no complaint of any bodily injury. The prosecution has established
prima facie case against the accused for the off ences u/s. 3 of Prevention
of Money Laundering Act, punishable u/s 4 of the said Act. Hence, the
accused is remanded to Judicial custody till 28.06.2023."
9. Thereafter, the appellant fi led an application for bail which was
dismissed on 16.06.2023 by a speaking order considering all the contentions.
This has attained fi nality. The respondents made a further application seeking
custody for further investigation.
10. All the above activities took place on a single day, except the
dismissal of the application for bail. The Habeas Corpus petition fi led by
the appellant's wife was taken up for hearing on 15.06.2023 on an urgent
mentioning, whereby the appellant was directed to be shifted to a private
hospital of his choice to undergo a bypass surgery. A surgery was accordingly
done.
11. On the application fi led by the respondents, the learned Principal
Sessions Judge granted custody to them for a period of 8 days, while
dismissing the bail application as noted earlier.
"24. In the result, the petition is allowed and Shri Karthik Dasari,
Deputy Director, Directorate of Enforcement, Chennai is permitted to
have the custody of the accused Sh. V. Senthil Balaji for 8 days from
16.06.2023 with the following conditions:
(1) The Deputy Director of Enforcement Directorate shall not remove
the accused from the Kaveri Hospital, who has been admitted
for treatment.
(2) The Deputy Director of Enforcement Directorate shall interrogate
the accused at the hospital by taking into consideration of his
ailments and the treatment given to him in the hospital after
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
862
SUPREME COURT REPORTS
[2023] 12 S.C.R.
obtaining necessary opinion from the team of Doctors, who are
giving treatment to him about his fi tness for interrogation.
(3) The Deputy Director of Enforcement Directorate interrogate the
accused without any hindrance to the health conditions of the
accused and also the treatment provided to him.
(4) The Deputy Director of Enforcement Directorate is directed to
provide suffi cient food and shelter to the accused and they should
not use third degree method and should not cause any cruelty to
the accused.
(5) No threat of coercion will be made on the Respondent/accused.
(6) The family members of the accused are to be permitted to see
the accused during the custody, subject to the medical advice.
(7) The Deputy Director of Enforcement Directorate is directed
to provide necessary security for the accused while he is in his
custody.
(8) The Deputy Director of Enforcement Directorate is directed to
produce the accused on 23.06.2023 by 3.00 p.m. through video
conference and the petition is ordered accordingly."
12. After fi ling an application on 17.06.2023, seeking a direction that
the fi rst 15 days custody period should not come in the way of actual period
of custody, before the learned Principal Sessions Judge, the respondents
approached this Court in Special Leave Petition (Criminal) No. 7437 of 2023.
Incidentally, another Special Leave Petition (Criminal) No. 7460 of 2023 was
fi led assailing the conditions imposed in the order dated 16.06.2023 by which
8 days custody was granted as afore-stated in favour of the respondents.
13. Taking note of the pendency of the Habeas Corpus petition, while
keeping the Special Leave Petitions pending, the following order was passed
on 21.06.2023,
"1. We have heard Mr. Tushar Mehta, learned Solicitor General of India
on behalf of the petitioner and S/Shri Neeraj Kishan Kaul, Devadatt
Kamat and Vikram Chaudhry, learned Senior Counsel, who are on
caveat, on behalf of the Respondents.
863
2. The High Court is yet to render its fi nal opinion on the following
issues: -
(i) Re. maintainability of the Habeas Corpus Petition;
(ii) The exclusion of the period of treatment undergone by the
detenu from the period of custodial interrogation.
3. Since both these issues are likely to be examined by the High
Court on the date fi xed, i.e., 22-06-2023 or soon thereafter, we deem
it appropriate to post these Special Leave Petitions for further hearing
on 04-07-2023.
4. It is clarifi ed that the pendency of these Special Leave Petitions shall
not be taken as a ground to adjourn the matter, pending adjudication
before the High Court.
5. The observations made by the High Court in the interim order
dated 15-06-2023 or any oral observation made by this Court during
the course of hearing shall have no bearing on the merits of the case."
14. In the meanwhile, in the pending Habeas Corpus petition additional
grounds were raised questioning the orders of the learned Principal Sessions
Judge granting both judicial and police remand, no specifi c prayer as such
was sought for.
15. On 22.06.2023, the respondents fi led an application before the High
Court of Madras to exclude the period of hospitalisation for the purpose of
counting custody period as no actual custody was taken.
16. By the order dated 04.07.2023, the Judges of the Division Bench
diff ered with each other. Justice Nisha Banu allowed the Habeas Corpus
petition, though either of the remand orders were not challenged:
"(11) In the result, the Habeas Corpus Petition is allowed in the
following terms:-
1. The Writ of Habeas Corpus Petition is maintainable;
2. Enforcement Directorate is not entrusted with the powers to
seek police custody under the Prevention of Money Laundering
Act, 2002;
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
864
SUPREME COURT REPORTS
[2023] 12 S.C.R.
3. Miscellaneous petition fi led by Respondent 1 seeking exclusion
of the period is dismissed;"
17. Justice D. Bharata Chakravarty, recorded his views in diff ering
with the one expressed by the other learned Judge:
"(i) The Habeas Corpus Petition in H.C.P.No. 1021 of 2023 shall
stand dismissed;
(ii) The period from 14.06.2023 till such time the detenu/accused is
fi t for custody of the respondent shall be deducted from the initial
period of 15 days under Section 167(2) of the Code of Criminal
Procedure;
(iii) The detenu/accused shall continue the treatment at Cauvery
Hospital until discharge or for a period of 10 days from today
whichever is earlier and thereafter, if further treatment is
necessary, it can be only at the Prison/Prison Hospital as the case
may be;
(iv) As and when he is medically fi t, the respondents will be able to
move the appropriate Court for custody and the same shall be
considered on its own merits in accordance with law except not
to be denied on the ground of expiry of 15 days from the date of
remand;
(v) However, there shall be no order as to costs."
18. On a reference made, the third learned Judge, Justice C.V.
Kartikeyan extended his concurrence with Justice D. Bharata Chakravarty:
"(i) Whether Enforcement Directorate has the power to seek custody
of a person arrested?
The answer given by this Court is 'Yes' in alignment with the
views/opinion expressed by the Hon'ble Justice Mr. D. Bharatha
Chakravarthy.
(ii) Whether the Habeas Corpus Petition itself is maintainable after
a judicial order of remand is passed by a Court of competent
jurisdiction?
865
The Petition would be maintainable in exceptional circumstances,
but this case does not attract any exceptional circumstance and
consequently since an order of remand had been passed by a Court
of competent jurisdiction, the relief sought in the petition cannot
be granted. I would align with the view expressed by the Hon'ble
Justice Mr. D. Bharatha Chakravarthy, with respect to this issue.
(iii) The consequential issue is as to whether Enforcement Directorate
would be entitled to seek exclusion of time for the period of
hospitalization beyond the fi rst 15 days from the date of initial
remand."
19. However, the learned Judge sent the fi le back to the Division
Bench to adjudicate upon the date of custody to be reckoned followed by
the actual days that might be required. Aggrieved, the appellant and his wife
fi led Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 and Special
Leave Petition (Criminal) Nos. 8652-8653 of 2023 respectively. With the
limited grievance over the fi le being sent back by the third learned Judge,
the respondents fi led Special Leave Petition (Criminal) No. 8750 of 2023.
Two more Special Leave Petitions have been fi led by respondents being
Special Leave Petition (Criminal) Nos. 7437 of 2023 and 7460 of 2023,
challenging the interim order of the High Court and the conditions imposed
by the learned Principal Sessions Judge while granting remand and for the
exclusion of 15 days.
SUBMISSIONS OF THE APPELLANT:
20. We have had the pleasure of hearing Shri Kapil Sibal and Shri
Mukul Rohatgi, learned Senior Advocates appearing on behalf of the
appellant, at length. We would like to summarise their submissions in a
nutshell together.
21. There is no power vested under the PMLA, 2002 to seek custody
in favour of an authorized offi cer. Such an authorized offi cer is not a police
offi cer and therefore, Section 167(2) of the Code of Criminal Procedure,
1973 (hereinafter referred to as "the CrPC, 1973"), with particular reference
to a remand in his favour, is not available. Custody under Section 167(2) of
the CrPC, 1973 can only be in favour of a police offi cer and not any other
agency. There is no investigation under the PMLA, 2002 since it is to be
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
866
SUPREME COURT REPORTS
[2023] 12 S.C.R.
taken as synonymous with inquiry. After the completion of 24 hours from
the arrest, there cannot be further custody in favour of an offi cer. Being a
benefi cial legislation, non-compliance of Section 41A of the CrPC, 1973
would vitiate the orders of remand. The learned Principal Sessions Judge
passed a cryptic order ignoring the clear non-compliance of Section 19 of
the PMLA, 2002.
22. The outer limit of 15 days of custody to the police from the date
of arrest has worked itself out. Therefore, no Court can extend it under any
circumstance. The majority judgments did not apply the decision in CBI
v. Anupam J. Kulkarni (1992) 3 SCC 141 as followed thereafter by this
Court, in the correct perspective. Reliance upon CBI v. Vikas Mishra,
(2023) 6 SCC 49 is misplaced, with the decisions of the larger Bench and
the Co-ordinate Bench acting as binding precedents. A writ of Habeas
Corpus is certainly maintainable in the present case in view of procedural
non-compliance. Provisions of both the CrPC, 1973 and the PMLA, 2002
ought to be construed and interpreted strictly. There is a total non-application
of mind on the part of the learned Principal Sessions Judge in passing the
orders of remand.
23. The High Court has committed an error in not appreciating
the legislative scheme and the timeline in the light of Article 22 of the
Constitution of India, 1950. Articles 21, 22 of the Constitution of India, 1950
and Section 167 of the CrPC, 1973 ought to be read harmoniously. It is not
for the Courts to legislate to provide extension of the period of 15 days. The
decision rendered in Directorate of Enforcement v. Deepak Mahajan,
(1994) 3 SCC 440 actually enures to the benefi t of the appellant which the
majority judgments failed to appreciate. Since the arrest was based upon
the materials, over which a satisfaction was arrived at creating reasons to
believe, the statute does not facilitate any more custodial interrogation. The
appellant can very well be questioned and interrogated in prison.
SUBMISSIONS OF THE RESPONDENTS:
24. Shri Tushar Mehta, learned Solicitor General, while repelling the
contentions raised, made further submissions.
25. The writ petition, as fi led invoking Article 226 of the Constitution
of India, 1950 is not maintainable. There was a legal arrest following which
867
the arrested person was forwarded to the learned Principal Sessions Judge.
Orders were passed on merit, both for judicial custody and thereafter in
favour of the respondents. The writ petition was fi led only challenging
the arrest as illegal. When it was taken up on 15.06.2023 the accused was
produced already. Thus, even on that day the prayer was not in subsistence.
The respondents did not get the actual custody. The conditions attached
are challenged before this Court. Even the appellant has stated in his
arguments that he was not to be questioned during his so-called ailment in
the hospital but was ready thereafter. The word "custody" cannot be given a
restrictive meaning. The PMLA, 2002 is a special Act having its own distinct
characteristics. It is a sui generis legislation. It provides for an elaborate
mechanism for a thorough investigation through search, seizure and arrest.
Section 65 of the PMLA, 2002 clearly speaks of the overriding eff ect over
the CrPC, 1973. There is due compliance of Section 19 of the PMLA, 2002.
The appellant has been hoodwinking the investigating agency, as rightly
taken note of by the third learned Judge of the High Court.
26. The application of Sections 167(1) and (2) of the CrPC, 1973 to
an investigation in connection with an off ence under the PMLA, 2002, is
no longer res integra in view of the decisions rendered in Deepak Mahajan
(supra), followed by Ashok Munilal Jain v. Directorate of Enforcement,
(2018) 16 SCC 158.
27. The reliance placed by the appellant on Anupam J. Kulkarni
(supra), as followed thereafter by this Court is misconceived. In the said
case, the facts are diff erent as it was a case of counting the days after the
arrestee was given custody in favour of the investigating agency, whereas no
such custody has ever been made to the respondents. The principle governing
actus curiae neminem gravabit was not the subject matter of those decisions.
All legal actions taken by the appellant lack bona fi des, they are solely to
evade custody. The appellant has not even challenged the rejection of the
bail wherein similar contentions have been taken note of and rejected.
28. To sum up, it is submitted that, both on facts and law, the appellant
does not have a case as there is a complete abuse of the process of law.
Incidentally, it is prayed that the Special Leave Petitions fi led by the
respondents will have to be allowed giving suffi cient number of days for
further investigation.
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
868
SUPREME COURT REPORTS
[2023] 12 S.C.R.
WRIT OF HABEAS CORPUS:
29. A writ of Habeas Corpus shall only be issued when the detention
is illegal. As a matter of rule, an order of remand by a judicial offi cer,
culminating into a judicial function cannot be challenged by way of a writ
of Habeas Corpus, while it is open to the person aggrieved to seek other
statutory remedies. When there is a non-compliance of the mandatory
provisions along with a total non-application of mind, there may be a case
for entertaining a writ of Habeas Corpus and that too by way of a challenge.
30. In a case where the mandate of Section 167 of the CrPC, 1973
and Section 19 of the PMLA, 2002 are totally ignored by a cryptic order,
a writ of Habeas Corpus may be entertained, provided a challenge is
specifi cally made. However, an order passed by a Magistrate giving reasons
for a remand can only be tested in the manner provided under the statute
and not by invoking Article 226 of the Constitution of India, 1950. There
is a diff erence between a detention becoming illegal for not following the
statutory mandate and wrong or inadequate reasons provided in a judicial
order. While in the former case a writ of Habeas Corpus may be entertained,
in the latter the only remedy available is to seek a relief statutorily given.
In other words, a challenge to an order of remand on merit has to be made
in tune with the statute, while non-compliance of a provision may entitle
a party to invoke the extraordinary jurisdiction. In an arrest under Section
19 of the PMLA, 2002 a writ would lie only when a person is not produced
before the Court as mandated under sub-section (3), since it becomes a
judicial custody thereafter and the concerned Court would be in a better
position to consider due compliance.
31. Suffi ce it is to state that when reasons are found, a remedy over
an order of remand lies elsewhere. Similarly, no such writ would be
maintainable when there is no express challenge to a remand order passed
in exercise of a judicial function by a Magistrate. State of Maharashtra v.
Tasneem Rizwan Siddiquee, (2018) 9 SCC 745:
"10. The question as to whether a writ of habeas corpus could be
maintained in respect of a person who is in police custody pursuant to
a remand order passed by the jurisdictional Magistrate in connection
with the off ence under investigation, this issue has been considered in
869
Saurabh Kumar v. Jailor, Koneila Jail, (2014) 13 SCC 436 : (2014) 5
SCC (Cri) 702 and Manubhai Ratilal Patel v. State of Gujarat, (2013)
1 SCC 314 : (2013) 1 SCC (Cri) 475 . It is no more res integra. In the
present case, admittedly, when the writ petition for issuance of a
writ of habeas corpus was fi led by the respondent on 18-3-2018/193-2018 and decided by the High Court on 21-3-2018 [Tasneem
Rizwan Siddiquee v. State of Maharashtra, 2018 SCC OnLine
Bom 2712] her husband Rizwan Alam Siddiquee was in police
custody pursuant to an order passed by the Magistrate granting
his police custody in connection with FIR No. I-31 vide order dated
17-3-2018 and which police remand was to enure till 23-3-2018.
Further, without challenging the stated order of the Magistrate,
a writ petition was fi led limited to the relief of habeas corpus.
In that view of the matter, it was not a case of continued illegal
detention but the incumbent was in judicial custody by virtue of an
order passed by the jurisdictional Magistrate, which was in force,
granting police remand during investigation of a criminal case.
Resultantly, no writ of habeas corpus could be issued."
(emphasis supplied)
SECTION 41A OF THE CODE OF CRIMINAL PROCEDURE,
1973 VIS-À-VIS SECTION 19 OF THE PREVENTION OF MONEY
LAUNDERING ACT, 2002:
Section 41A
"41A. Notice of appearance before police offi cer.-(1) The police
offi cer shall, in all cases where the arrest of a person is not required
under the provisions of sub-section (1) of Section 41, issue a notice
directing the person against whom a reasonable complaint has been
made, or credible information has been received, or a reasonable
suspicion exists that he has committed a cognizable off ence, to appear
before him or at such other place as may be specifi ed in the notice.
(2) Where such a notice is issued to any person, it shall be the duty of
that person to comply with the terms of the notice.
(3) Where such person complies and continues to comply with the
notice, he shall not be arrested in respect of the off ence referred to in
V. SENTHIL BALAJI v. THE STATE REPRESENTED BY
DEPUTY DIRECTOR AND ORS. [M. M. SUNDRESH, J.]
870
SUPREME COURT REPORTS
[2023] 12 S.C.R.
the notice unless, for reasons to be recorded, the police offi cer is of
the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to comply with the terms of
the notice or is unwilling to identify himself, the police offi cer may,
subject to such orders as may have been passed by a competent Court
in this behalf, arrest him for the off ence mentioned in the notice."
32. Due interpretation of this provision of utmost importance has
been given by this Court on more than one occasion [Arnesh Kumar v.
State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil v. CBI,
(2022) 10 SCC 51]. The Interpretation of this provision, meant to preserve
and safeguard the liberty of a person, is taken note of in the afore-stated
judgments. This provision cannot be termed as a supplement to Section 19
of the PMLA, 2002. The PMLA, 2002 being a sui generis legislation, has
its own mechanism in dealing with arrest in the light of its objectives. The
concern of the PMLA, 2002 is to prevent money laundering, make adequate
recovery and punish the off ender. That is the reason why a comprehensive
procedure for summons, searches, and seizures etc., has been clearly
stipulated under Chapter V of the PMLA, 2002. An arrest shall only be
made after due compliance of the relevant provisions including Section 19
of the PMLA, 2002. Therefore, there is absolutely no need to follow and
adopt Section 41A of the CrPC, 1973 especially in the teeth of Section 65
of the PMLA, 2002.
33. In the absence of any mandate, one cannot force the Authorized
Offi cer to ensure due compliance of Section 41A of the CrPC, 1973
especially when a clear, diff erent and distinct methodology is available
under the PMLA, 2002. Following Section 41A of the CrPC, 1973 for
an arrest under the PMLA, 2002 would only defeat and destroy the very
inquiry/investigation under the PMLA, 2002. Till summons are issued to
a person, he is not expected to be in the know-how. Any prior intimation,
other than what is mandated under the PMLA, 1973 might seriously impair
the ongoing investigation.
34. The Explanation to Section 45 of the PMLA, 2002 once again
reiterates the role required to be performed by an Authorized Offi cer, duly
fulfi lling the conditions adumbrated under Section 19 of the PMLA, 2002.
The Explanation goes on to state by way of a clarifi cation that all off ences
871
under the Act shall be cognizable and non-bailable off ences, notwithstanding
anything contained to the contrary in the CrPC, 1973. Vijay Madanlal
Choudhary v. Union of India, 2022 (10) SCALE:
"THE 2002 ACT
19. The Act was enacted to address the urgent need to have
a comprehensive legislation inter alia for preventing moneylaundering, attachment of proceeds of crime, adjudication
and confi scation thereof including vesting of it in the Central
Government, setting up of agencies and mechanisms for
coordinating measures for combating money-laundering and
also to prosecute the persons indulging in the process or activity
connected with the proceeds of crime. This need was felt world
over owing to the serious threat to the fi nancial systems of the
countries, including to their integrity and sovereignty because of
money-laundering. The international community deliberated over
the dispensation to be provided to address the serious threat posed by
the process and activities connected with the proceeds of crime and
integrating it with formal fi nancial systems of the countries.