'ED Oblivious To Ground Realities': Punjab & Haryana HC Rejects Agency's Plea Against 4 Days Release Of Accused For Preparing His Defence

The Punjab and Haryana High Court has dismissed the Enforcement Directorate's (ED) plea challenging the four day release of an accused arrested under Prevention of Money Laundering Act, granted by special court to enable him to procure documents in his defence.The Court rejected the argument raised by ED that if the petitioner is taken out of jail and permission is given to him to meet other persons outside the jail premises, it will result in a grave miscarriage of justice, as it may give him a chance to deal with the proceeds of crime and crucial evidence.Justice Anoop Chitkara observed that the objection raised by ED "is far from the practicalities and the ground realities because family members and close friends are permitted to meet a prisoner even in jail. Confinement in the jail is not an isolation from society, but it is a restriction imposed on an accused to stay within four walls of a complex where people can come to meet a prisoner, and the inmates cannot come out to meet them. If somebody indulges in this tactic, they will get an opportunity during such interactions and even when the inmate comes to attend the trial."Adding that the ground raised by the ED is "not based on the ground realities, and it appears that the Enforcement Directorate is oblivious to the ground realities," the Court said, "People and friends occasionally meet the prisoner at that stage, and such meetings cannot be practically stopped."These observations came in response to the plea filed by ED under Section 482 CrPC challenging Special Court's order to release an accused for four days to enable him to procure documents to file a reply to the show cause notice issued by the Adjudicating Authority under Section 8(1) of PMLA 2002.ED had arrested the accused and filed the complaint before the Special Court. After that, on receipt of a notice under Section 8(1) of the PMLA, the accused applied for interim bail before the Special Judge. It was stated that the accused is required to collect documents to file a reply to the show cause notice regarding the retention of cash, jewellery, digital devices, FDRs, etc., which had already been taken in possession by the ED.The accused contended that in order to prepare his defence, it is important to visit offices such as banks and the income tax department personally, as well as to meet with people including his Chartered Accountant.The Special Court did not grant interim bail but it allowed the accused to be sent out for four days to collect various documents in police custody. Specific directions were made that accused should prepare a schedule with dates of his visit to different offices and meetings with different persons, and for such schedule to be handed over to the Superintendent, Central Prison, Ambala, who was further directed to allow him to visit for the said schedule in police custody.Aggrieved, the central probe agency moved High Court.After examining the submissions, the Court dealt in detail with the objections raised by the ED.Twin Conditions Under Sec. 45 PMLA Are Not Required To Be Complied When Release In Police Custody Is OrderedThe Court rejected the argument that the Special Judge overlooked the twin conditions of Section 45 of PMLA 2002.The bench made it clear that it is sufficient to state that "the condition would have applied only when the Court had released the petitioner on bail, whereas the Court never released him on interim bail but made arrangements to take him out of prison in police custody to file a proper response to the notice issued under Section 8(1) of PMLA 2002."The Court elucidated that the release from prison in police custody is neither bail nor interim bail. While out of prison in police custody, the inmate gets out of the prison's four walls but is under continued detention."Meanwhile, while on bail or interim bail, the accused is not detained but only has an undertaking through bond to appear before the Court or surrender to the prison. The primary concerns for a Judge while ordering an inmate's release in police custody are the accused being forcibly released by their accomplices, the accused being a flight risk, or the existence of a risk to the accused's life," it added.Thus, the twin conditions of Section 45 of the Prevention of Money Laundering Act, 2002 neither attract nor are required to be complied with while passing an order for release in police custody. the Court opined.Release Under Police Custody Cannot Be With Intent To Spy On AccusedThe Court further refused to accept the contention that the Sessions Court did not consider the fact that when the accused was in custody, he dissipated the proceeds of crime to the extent of Rs.22 lacs with the help of his family members, and as such, there was a possibility of his again transferring the money even in police custody.Justice Chitkara illustrated that hypothetically, if under some pretext the accused had operated computers during such a release in police custody, it would have...

'ED Oblivious To Ground Realities': Punjab & Haryana HC Rejects Agency's Plea Against 4 Days Release Of Accused For Preparing His Defence

Aiman J. Chishti

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'ED Oblivious To Ground Realities': Punjab & Haryana HC Rejects Agency's Plea Against 4 Days Release Of Accused For Preparing His Defence

Aiman J. Chishti

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