Observing that 15-day custody given to investigating agencies for interrogation should be the “actual” custody and time spent in medical treatment during that period be excluded, a bench of Justices AS Bopanna and MM Sundresh granted Balaji’s custody to the ED till August 12. Though the minister pleaded that he should be allowed to be treated by his doctor in custody, the court did not pass any order as solicitor general Tushar Mehta assured that his medical needs would be taken care of by the agency.
Rejecting the plea of Balaji that ED officers like officials of customs department can arrest but cannot seek custody of the accused for interrogation, the bench said, “That does not mean that there is no power under the PMLA, 2002 read with the CrPC to the Authorised Officer to seek custody. There is a fallacy in the said argument. One cannot apply Section 167(2) of the CrPC in piecemeal. There cannot be an application of the provision only for an arrest but not for custody. Such an argument is also dangerous from the point of view of an arrestee as the benefit conferred under the proviso to Section 167(2) of the CrPC will not be available”.
“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 is to prevent money laundering, make adequate recovery and punish the offender. 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. Therefore, there is absolutely no need to follow and adopt Section 41A of the CrPC…” the bench said.
“In the absence of any mandate, one cannot force the Authorised Officer to ensure due compliance of Section 41A of the CrPC, especially when a clear, different and distinct methodology is available under the PMLA. Following Section 41A of the CrPC for an arrest under the PMLA would only defeat and destroy the very inquiry/investigation under the PMLA. 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, might seriously impair the ongoing investigation,” the bench said.
As many of the accused tend to fall ill after being arrested and spend time in hospital while in 15-day police custody denying probe agency chance to interrogate him, the bench said that 15 days’ custody should be actual and it can span over the entire period of investigation – 60 or 90 days. The bench said that it did not agree with earlier SC’s ruling which needed to be re-examined by a larger bench.
“The word ‘custody’ under Section 167(2) of the CrPC, shall mean actual custody. Curtailment of 15 days of police custody by any extraneous circumstances, act of God, an order of Court not being the handiwork of investigating agency would not act as a restriction,” the bench said
“The Registry is directed to place the matter before 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 first 15 days of remand or spanning over the entire period of investigation – 60 or 90 days, as the case may be, as a whole,” it said.
