The Delhi High Court recently requested District & Sessions Judges to sensitize judicial officers posted under their jurisdiction regarding the maximum period for which an accused can be kept in custody under the Prevention of Money Laundering Act, 2002 (PMLA).
“It is trite that the Special Judge under Prevention of Money Laundering Act, 2002 (in short “PMLA”)/Magistrate is not a wing of the Police but is part of the judicial set up of the country. The order has to be passed by a Judicial Magistrate acting in a judicial capacity. It is therefore, his duty to see that the custody is the right custody and the order has to be passed with the ultimate object of securing justice. He has to act independently to determine the nature of the custody. He can change nature of custody from time to time. However, he cannot order police custody beyond the period of fifteen days,” Justice Vinod Goel observed.
The Court noted that both the Petitioners were arrested by the Enforcement Directorate (ED) on 22 August and were produced before Special Judge under PMLA on the same day. They were remanded to three days ED custody. Thereafter, they were remanded to three days judicial custody. After this, however, the Special Judge agreed to grant another 10 days of ED Police custody of both the Petitioners “without applying his mind to the relevant provision of Section 167 (2) of Cr.P.C.”.
Justice Goel observed that the Special Judge could not have allowed a total period of custody/remand of more than fifteen days from 22 August, which was when they were first produced before him.
“The Judicial Magistrate can in the first instance authorize the detention of the accused in such custody i.e., either police or judicial from time to time but the total period of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. The Judicial Officer shall ensure that from the first day of his production before him, the accused cannot be sent to police custody after completion of fifteen days. After the expiry of first period of fifteen days, the accused can only be kept in judicial custody but certainly not in police custody,” the Court further explained.
Besides, it also had a word of caution for the Public Prosecutors, observing, “The purity of justice must be maintained at all cost. It is not out of place to mention that the Public Prosecutor is the officer of the court and not the persecutor. He is supposed to assist the court in proper perspective. Before forwarding application for extension of remand by 14 days, he should have meticulously examined it to ensure that no violation of Section 167(2) of Cr.P.C. takes place,”